ANZ Magnetics Pty Limited
Sales Terms and Conditions
1. Agreement
(a) These Terms apply to all transactions between the Customer and ANZ Magnetics relating to the provision of Goods and Services, including all quotations, contracts and variations, and form a binding agreement between the parties. The Customer agrees that these Terms form the agreement under which ANZ Magnetics will provide Goods and Services to the Customer and has read these Terms carefully.
(b) These Terms take precedence over any terms of trade or sales terms and conditions contained in any document of the Customer or elsewhere.
(c) By placing an Order for Goods or Services from ANZ Magnetics, the Customer expressly warrants and represents that the Customer:
(i) Is eighteen (18) years of age or over, and has the full legal capacity to enter these Terms;
(ii) Has had sufficient opportunity to access, read and understand these Terms;
(iii) Accepts and will comply with these Terms; and
(iv) In supplying information to ANZ Magnetics, it is true, accurate, complete and up-to-date.
(d) The variation or waiver of a provision of these Terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.
(e) ANZ Magnetics may amend any details in a Quote by notice in writing to the Customer. Such amended details supersede any relevant prior detail in dealings between the parties.
2. Definitions and Interpretation
2.1 In these Terms, unless the context otherwise requires:
ACL means the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth);
Additional Charge means fees or charges for additional work performed at the Customer's request or reasonably required as a result of the Customer's conduct, calculated in accordance with ANZ Magnetics’ then current prices, and expenses incurred by ANZ Magnetics, at the Customer's request or reasonably required as a result of the Customer's conduct;
ANZ Magnetics means ANZ Magnetics Pty Limited, ABN 70 660 204 339, being the supplier of Goods or Services and includes ANZ Magnetics’ agents and permitted assigns;
Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Brisbane, Queensland, Australia;
Claim means any claim, demand, suit, action, cause of action, proceedings or judgement of any kind however caused, and whether arising under contract, tort, equity, statute or otherwise;
Corporations Act means the Corporations Act 2001 (Cth);
Customer means the person identified on a Quote or Order as the customer and includes the Customer's agents and permitted assigns;
Goods means any goods supplied by ANZ Magnetics including those supplied in the course of providing Services;
GST has the meaning given under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST;
Intellectual Property Rights includes all intellectual, proprietary and industrial property rights existing anywhere in the world, whether protected at common law or under statute, including trade marks, copyright, processes, know-how, patents, designs, inventions, trade secrets and trade, business, company or domain names, whether or not registered, and all rights to apply to register, revive or extend such rights, and all other intellectual property as defined in article 2 of the Convention establishing the World Intellectual Property Organisation 1967;
Loss means all losses including financial losses, costs (including party/party legal costs and ANZ Magnetics’ legal costs on a solicitor-client basis), expenses, lost profits, lost revenue, award of damages, personal injury (including death and total and permanent disability), property damage and other expenses of any nature whatsoever;
Order means confirmation in writing for the purchase of Goods or Services placed by a Customer in response to a Quote and as varied in writing from time to time by the parties;
PPS Law means the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time) and any amendment made at any time to any other legislation as a consequence of a PPS Law;
Quote means a written description of the Goods or Services to be provided, an estimate of ANZ Magnetics’ charges for the performance of the required work and an estimate of the time frame for the performance of the work;
Services means the services to be provided by ANZ Magnetics to the Customer in accordance with a Quote and these Terms; and
Terms means these Sales Terms and Conditions, as amended from time to time.
2.2 In these Terms, unless the context otherwise requires:
(a) A reference to writing includes email and other communication established through ANZ Magnetics' website (if any);
(b) Words denoting the singular include the plural and vice-versa;
(c) A reference to a gender includes all genders;
(d) A reference to a party or parties is to a party or parties of these Terms;
(e) Headings are for convenience or reference only and do not affect the meaning or interpretation of these Terms;
(f) A reference to a clause or paragraph is a reference to a clause or paragraph of these Terms;
(g) Where any word or phrase is defined in these Terms, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(h) A reference to a person or words denoting a person includes a company, statutory corporation, partnership, joint venture, association, authority, trust, state or government and vice-versa;
(i) A reference to legislation or provisions of legislation includes changes or re-enactments of the legislation and statutory instruments and regulations issued under legislation;
(j) A reference to a party to these Terms or any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;
(k) Obligations under these Terms affecting more than one (1) party bind them jointly and each of them severally;
(l) A reference to ‘related body corporate’ has the meaning given in the Corporations Act;
(m) The words ‘include’, ‘including’, ‘for example’, ‘such as’ and similar expressions are not words of limitation;
(n) Parties must perform their obligations on the dates and times fixed by reference to Brisbane, Queensland, Australia;
(o) References to all monetary amounts are in Australian dollars;
(p) A reference to anything (including any right) includes a reference to a part of that thing but this paragraph does not imply that performance of part of an obligation constitutes performance of the obligation;
(q) References to any agreement or other document annexed or referred to in these Terms includes any amendments to it any documents in addition to or in substitution for it which has been approved in writing by the parties to these Terms;
(r) These Terms must not be interpreted adversely to a party only because that party was responsible for their preparation; and
(s) If the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:
(i) If it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and
(ii) In all other cases, must be done on the next Business Day.
3. Quotes
(a) ANZ Magnetics may provide the Customer with a Quote. Any Quote issued by ANZ Magnetics is valid for thirty (30) days from the date of issue. ANZ Magnetics reserves the right to cancel the Quote at any time.
(b) Unless otherwise expressly agreed in writing, a Quote does not include delivery, installation or insurance of the Goods.
(c) Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to ANZ Magnetics.
(d) Following provision of a Quote to the Customer, ANZ Magnetics is not obliged to commence work until the Quote has been accepted by the Customer. This occurs by the Customer accepting the Quote in writing and ANZ Magnetics acknowledging such Order in writing.
(e) ANZ Magnetics reserves the right to amend any Quote before the Order has been completed to take into account any rise or fall in the cost of completing the Order. ANZ Magnetics will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these Terms.
(f) An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the ACL, this estimate is not binding upon ANZ Magnetics.
4. Orders
(a) Every Order by the Customer for the provision of Goods or Services must be submitted in writing.
(b) An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods or Services ordered and ANZ Magnetics' Quote and ANZ Magnetics has acknowledged the Order in writing. Any costs incurred by ANZ Magnetics in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.
(c) Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.
(d) Placement of an Order by the Customer signifies acceptance by the Customer of these Terms and the most recent Quote provided by ANZ Magnetics relating to that Order.
(e) ANZ Magnetics may in its absolute discretion refuse to provide Goods or Services where:
(i) Goods are unavailable for any reason whatsoever;
(ii) Credit limits cannot be agreed upon or have been exceeded; or
(iii) Payment for Goods or Services previously provided to the Customer or any related body corporate of the Customer or to any other party who is, in the reasonable opinion of ANZ Magnetics, associated with the Customer under the same or another supply contract, has not been received by ANZ Magnetics.
(f) An Order cannot be cancelled without the prior written consent of ANZ Magnetics. Where an Order is cancelled, the Customer indemnifies ANZ Magnetics against any Loss incurred by ANZ Magnetics as a result of the cancellation, including loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.
5. Variations
(a) The Customer may request that its Order be varied by providing a request in writing to ANZ Magnetics. A request for a variation must be agreed to in writing by ANZ Magnetics in order to have effect.
(b) If the Customer wishes to vary its requirements after a Quote has been prepared by ANZ Magnetics or after the placement of an Order, ANZ Magnetics reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by ANZ Magnetics in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.
(c) ANZ Magnetics has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.
6. Invoicing and Payment
(a) ANZ Magnetics may in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:
(i) Prior to commencing the provision of the Goods or Services, for an amount equal to the Quote and Additional Charges where ANZ Magnetics has not previously carried out work for the Customer or where ANZ Magnetics chooses to do so;
(ii) At any time before the Order is completed, ANZ Magnetics may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at ANZ Magnetics' discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods or Services being provided; or
(iii) Upon completion of the provision of the Goods or Services or any time thereafter, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing ANZ Magnetics' charge for the work performed in completing the Order, Goods delivered, and for any Additional Charges.
(b) The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:
(i) The amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges; or
(ii) Where no Quote has been provided by ANZ Magnetics, ANZ Magnetics’ usual charges for the Goods or Services (or both) as described in the Order.
(c) The Customer must pay an invoice issued by ANZ Magnetics to ANZ Magnetics within thirty (30) days of a valid tax invoice being issued to the Customer.
(d) If any invoice is due but unpaid, ANZ Magnetics may withhold the provision of any further Goods or Services until overdue amounts are paid in full.
(e) ANZ Magnetics may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to ANZ Magnetics.
(f) The Customer is not entitled to retain any money owing to ANZ Magnetics notwithstanding any default or alleged default by ANZ Magnetics of these Terms, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the ACL.
(g) The Customer is to pay ANZ Magnetics on demand interest at the rate of twelve percent (12%) per year on all overdue amounts owed by the Customer to ANZ Magnetics, calculated daily.
(h) All costs and expenses associated with collecting overdue amounts, including legal fees on a solicitor-client basis and internal costs and expenses of ANZ Magnetics, are to be paid by the Customer as a debt due and payable under these Terms.
(i) The Customer and ANZ Magnetics agree to comply with their obligations in relation to GST.
7. Additional Charges
(a) ANZ Magnetics may require the Customer to pay Additional Charges in respect of costs incurred by ANZ Magnetics as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by ANZ Magnetics in order for it to provide the Goods or Services within the specified time frame (if any).
(b) The imposition of Additional Charges may also occur as a result of:
(i) Cancellation by the Customer of an Order where cancellation results in Loss to ANZ Magnetics;
(ii) Storage costs for Goods not collected from ANZ Magnetics within two (2) weeks of the date on which the Goods are manufactured, fabricated, created, formed or made available for delivery;
(iii) Photocopying, courier, packing or handling charges not included in the Quote;
(iv) Government or council taxes or charges not included in the Quote; or
(v) Additional work required by the Customer or any other occurrence which causes ANZ Magnetics to incur costs in respect of the Customer's Order additional to the quoted cost.
8. Acceptance of Goods
If the Customer fails to advise ANZ Magnetics in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within one (1) week of delivery or collection, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order. Nothing in this paragraph affects the Customer's rights for any alleged failure of a guarantee under the ACL.
9. Title and Risk
(a) Risk in Goods passes to the Customer immediately upon delivery or collection by the Customer.
(b) Property and title in Goods supplied to the Customer under these Terms does not pass to the Customer until all money (including money owing in respect of other transactions between ANZ Magnetics and the Customer) due and payable to ANZ Magnetics by the Customer have been fully paid.
(c) Where Goods are supplied by ANZ Magnetics to the Customer without payment in full, the Customer:
(i) Is a bailee of the Goods until property in them passes to the Customer;
(ii) Irrevocably appoints ANZ Magnetics to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of ANZ Magnetics with respect to the Goods under applicable law;
(iii) Must be able upon demand by ANZ Magnetics to separate and identify as belonging to ANZ Magnetics Goods supplied by ANZ Magnetics from other goods which are held by the Customer;
(iv) Must not allow any person to have or acquire any security interest in the Goods;
(v) Agrees that ANZ Magnetics may repossess the Goods if payment is not made within thirty (30) days (or such longer time as ANZ Magnetics may, in its complete discretion, approve in writing) of the supply of the Goods; and
(vi) The Customer grants an irrevocable licence to ANZ Magnetics or its agent to enter the Customer's premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies ANZ Magnetics for any damage to property or personal injury which occurs as a result of ANZ Magnetics entering the Customer's premises.
(d) Where Goods are supplied by ANZ Magnetics to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by ANZ Magnetics in respect of those Goods, and:
(i) The Customer makes a new object from the Goods, whether finished or not;
(ii) The Customer mixes the Goods with other goods; or
(iii) The Goods become part of other goods (New Goods),
the Customer agrees with ANZ Magnetics that the ownership of the New Goods immediately passes to ANZ Magnetics. The Customer will hold the New Goods on trust for ANZ Magnetics until payment of all sums owing to ANZ Magnetics whether under these Terms or any other contract have been made. ANZ Magnetics may require the Customer to store the New Goods in a manner that clearly shows the ownership of ANZ Magnetics.
(e) For the avoidance of doubt, under paragraph 9(d), the ownership of the New Goods passes to ANZ Magnetics at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.
(f) Despite paragraph 9(c), the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:
(i) Where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for ANZ Magnetics in a separate account, until all amounts owned by the Customer to ANZ Magnetics have been paid; or
(ii) Where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to ANZ Magnetics upon ANZ Magnetics giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints ANZ Magnetics as its attorney.
(g) Where Goods are supplied by ANZ Magnetics to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by ANZ Magnetics in respect of those Goods, the Customer acknowledges that ANZ Magnetics has a right to register and perfect a personal property security interest.
(h) If:
(i) A PPS Law applies or commences to apply to these Terms or any transaction contemplated by them, or ANZ Magnetics determines (based on legal advice) that this is the case; and
(ii) In ANZ Magnetics' opinion, the PPS Law:
(A) Does or will adversely affect ANZ Magnetics' security position or obligations; or
(B) Enables or would enable ANZ Magnetics' security position to be improved without adversely affecting the Customer,
ANZ Magnetics may give notice to the Customer requiring the Customer to do anything (including amending these Terms or execute any new terms and conditions) that in ANZ Magnetics' opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 9(h)(ii)(A) or improve the security position as contemplated in paragraph 9(h)(ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in ANZ Magnetics' opinion ANZ Magnetics' security position or obligations under or in connection with these Terms have been or will be materially adversely affected, ANZ Magnetics may by further notice to the Customer cancel these Terms. If this occurs, the Customer must pay to ANZ Magnetics any money owed to ANZ Magnetics by the Customer immediately.
10. Intellectual Property Rights
(a) The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise ANZ Magnetics to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to ANZ Magnetics for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified ANZ Magnetics against all Losses incurred by ANZ Magnetics in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.
(b) Unless specifically agreed in writing between ANZ Magnetics and the Customer, all Intellectual Property Rights in any works created by ANZ Magnetics on behalf of the Customer vest in and remain the property of ANZ Magnetics.
(c) Subject to payment of all invoices due in respect of the Goods or Services, ANZ Magnetics grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by ANZ Magnetics in connection with the provision of Goods or Services under these Terms for the purposes contemplated by the Order.
11. Agency and Assignment
(a) The Customer agrees that ANZ Magnetics may at any time appoint or engage an agent to perform an obligation of ANZ Magnetics arising out of or pursuant to these Terms.
(b) ANZ Magnetics has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms provided that the assignee agrees to assume any duties and obligations of ANZ Magnetics owed to the Customer under these Terms.
(c) The Customer is not to assign, or purport to assign, any of its obligations or rights under these Terms without the prior written consent of ANZ Magnetics.
12. Default by Customer
(a) Each of the following occurrences constitutes an event of default:
(i) The Customer breaches or is alleged to have breached these Terms for any reason (including, but not limited to, defaulting on any payment due under these Terms) and fails to remedy that breach within fourteen (14) days of being given notice by ANZ Magnetics to do so;
(ii) The Customer, being a natural person, commits an act of bankruptcy;
(iii) The Customer, being a corporation, is subject to:
(A) A petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
(B) A receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act being appointed to all or any part of the Customer's property and undertaking;
(C) The entering of a scheme of arrangement (other than for the purpose of restructuring); and
(D) Any assignment for the benefit of creditors;
(iv) The Customer purports to assign its rights under these Terms without ANZ Magnetics’ prior written consent; or
(v) The Customer ceases or threatens to cease conduct of its business in the normal manner.
(b) Where an event of default occurs, except where payment in full has been received by ANZ Magnetics, ANZ Magnetics may:
(i) Terminate these Terms;
(ii) Terminate any or all Orders and credit arrangements (if any) with the Customer;
(iii) Refuse to deliver Goods or provide further Services;
(iv) Pursuant to paragraph 9(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or
(v) Retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.
(c) In addition to any action permitted to be taken by ANZ Magnetics under paragraph 12(b), on the occurrence of an event of default all invoices, including ANZ Magnetics’ rights under paragraphs 6(g)-(h) will become immediately due and payable.
13. Termination
(a) In addition to the express rights of termination provided in these Terms, a party may terminate these Terms by giving seven (7) days written notice to the other party.
(b) Termination of these Terms will not affect or prejudice any rights, Claims or Losses ANZ Magnetics may have under these Terms.
14. Exclusions and Limitation of Liability
(a) The Customer expressly agrees that use of the Goods and Services is at the Customer's risk. To the full extent allowed by law, ANZ Magnetics' liability for breach of any term implied into these Terms by any law is excluded.
(b) All information, specifications and samples provided by ANZ Magnetics in relation to the Goods or Services are approximations only and, subject to any guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Customer's use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery, or to make any Claim in respect of them.
(c) ANZ Magnetics gives no warranty in relation to the Goods or Services provided or supplied. Under no circumstances is ANZ Magnetics or any of its suppliers liable or responsible in any way to the Customer or any other person for any Loss as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including for and in relation to any of the following:
(i) Any Goods or Services supplied to the Customer;
(ii) Any delay in supply of the Goods or Services; or
(iii) Any failure to supply the Goods or Services.
(d) Any advice, recommendation, information, assistance or service given by ANZ Magnetics in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. ANZ Magnetics does not accept any liability or responsibility for any Loss suffered as a result of the Customer's reliance on such advice, recommendation, information, assistance or service.
(e) To the fullest extent permissible at law, ANZ Magnetics is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on tort, negligence, strict liability or otherwise, even if ANZ Magnetics has been advised of the possibility of damages.
(f) The Customer acknowledges that the Goods or Services are not for personal, domestic or household purposes.
(g) The ACL may give to the Customer certain guarantees. Where liability for breach of any such guarantee can be limited, ANZ Magnetics' liability (if any) arising from any breach of those guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.
(h) For ANZ Magnetics to comply with its obligations under paragraph 14(g), the Customer must give ANZ Magnetics and any of its employees, agents, contractors or subcontractors access to the Customer’s premises where the Goods are located or the Services have been provided.
(i) The guarantees provided by the ACL may be void or voided by the actions or inactions of the Customer.
15. Indemnity
The Customer indemnifies, keeps indemnified and holds harmless ANZ Magnetics, its servants and agents in respect of any Claim or demand made or action commenced by any person (including the Customer) against ANZ Magnetics or, for which ANZ Magnetics is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these Terms including any legal costs incurred by ANZ Magnetics in relation to meeting any Claim or demand or any party/party legal costs for which ANZ Magnetics is liable in connection with any such Claim or demand.
16. Force Majeure
(a) If circumstances beyond ANZ Magnetics' control prevent or hinder its provision of the Goods or Services, ANZ Magnetics is free from any obligation to provide the Goods or Services while those circumstances continue. ANZ Magnetics may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.
(b) Circumstances beyond ANZ Magnetics' control include unavailability of materials or components, strikes, lockouts, pandemics, riots, natural disasters, fire, war, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.
17. Dispute Resolution
(a) If a dispute arises between the Customer and ANZ Magnetics, the following procedure applies:
(i) A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this clause.
(ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
(iii) A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.
(b) If a dispute is notified, the dispute must immediately be referred to the parties' respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within twenty (20) Business Days (or other period as agreed).
(c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ADC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to the ADC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms.
(d) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these Terms.
(e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.
18. Subcontracting
(a) ANZ Magnetics is permitted to use other persons to provide some or all of the Services.
(b) ANZ Magnetics is responsible for the work of any of its subcontractors.
19. General
(a) These Terms are governed by the laws of Brisbane, Queensland, Australia.
(b) Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Brisbane, Queensland, Australia.
(c) These Terms and any Quotes and written variations agreed to in writing by ANZ Magnetics represent the entire agreement between the parties relating to the subject matter of these Terms.
(d) These Terms supersede all oral and written negotiations and communications by and on behalf of either of the parties.
(e) In entering into these Terms, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by ANZ Magnetics or any of its employees or agents relating to or in connection with the subject matter of these Terms.
(f) If any provision of these Terms at any time is or becomes void, voidable, invalid or unenforceable, the remaining provisions will continue to have full force and effect.
(g) A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
(h) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
(i) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second (2nd) Business Day after posting; or if sent by email before 4:00pm one (1) Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
(j) A party may only change its postal or email address for service by giving notice of that change in writing to the other party.
(k) Paragraphs 6(b)-(c), 6(g)-(i), 9, 10, 12(c), 13(b), 14, 15, 17 and 19(h)-(k) survive termination of these Terms for whatever reason, together with any other term, condition or obligation which by its nature is intended to do so.
20. Updates to these Terms
(a) These Terms were last updated on 12 September 2024 and replace any other terms of trade or sales terms and conditions published by ANZ Magnetics to date.
(b) ANZ Magnetics reserves the right to alter, amend, modify or otherwise update these Terms in its sole and absolute discretion, from time to time.