Terms of Service
The following Terms of Servicewill apply to any Goods and/or Services supplied by DGG Pty Ltd ATF the DGG Trust, trading as ‘Diverse Glazing Group’ (ABN 65 882 914 433) (Diverse Glazing Group) to the Customer and are to be read together with the Quote(together the Agreement). In the event of any inconsistency between these Terms of Service and the Quote, the terms contained in the Quote will prevail to the extent of such inconsistency.
This Agreement (including theQuote)will become binding on the Customer upon(a) the Customer accepting it; or (b) the Customer giving instructions to Diverse Glazing Group; or(c) the Customer making payment of any amount (including the deposit) to Diverse Glazing Group in respect of Goods and/or Services; or (d) the Customer accepting or proceeding with the Services.
1. SUPPLY OF GOODS AND/OR SERVICES
1.1 Diverse Glazing Group and the Customer agree that Diverse Glazing Group will provide the Goods and/or Services to the Customer inaccordance with the Quoteon the terms and conditions contained in this Agreement.
1.2 The Quote is valid for 30 days and is merely an invitation to treat, and is not binding on Diverse Glazing Group until Diverse Glazing Group has accepted it. The Quote is subject to changes in price including without limitation parts price fluctuations and other fees/costs that may have been unforeseeable in the initial Quote.
1.3 TheQuote becomes binding on Diverse Glazing Group upon written acceptance by Diverse Glazing Group or at the time Diverse Glazing Group commences supply of the Quote, whichever comes first.Diverse Glazing Group may, in its discretion, accept or reject in whole or part any Quote.
1.4 Once theQuote is accepted by Diverse Glazing Group, the Customer will be committed to purchase the Goods and/or Services and cannot cancel or revoke the Quote.
1.5 The Customer acknowledges and agrees that the supply of Goods and/or Services under accepted Quotes remains subject to availability and if, for any reason Diverse Glazing Group is unable to proceed with the supply, Diverse Glazing Group reserves the right to cancel the order (in which case Diverse Glazing Group will refund all amounts paid for the Quote). This is the Customer’s only remedy in these circumstances and Diverse Glazing Group will not be liable to pay any other amount to the Customer.
1.6 The supply of Goods and/or Services under this Agreement specifically excludes those items referred to as exclusions in theQuote(if any).
2.1 The Fees payable by the Customer to Diverse Glazing Group for theGoods and/or Servicesis the price specified in theQuote pursuant to Diverse Glazing Group’s current rates and charges schedule at the time the Quote is placed (or as otherwise agreed between the parties).
2.2 Diverse Glazing Group reserves the right to vary the price of the Goods and/or Services it provides to the Customer from time to time without notice, even after it has accepted the Quote, including without limitation when Diverse Glazing Group’s suppliers vary the costs of the materials that they supply to Diverse Glazing Group. Diverse Glazing Group will endeavor to provide the Customer with notice in the event that this occurs.
3.1 The Customer must pay allFeesin accordance with the payment terms specified in the Quote. If the Quote requires an upfront payment or deposit then the Customer must make payment upfront as this enables Diverse Glazing Group to pay for materials used in the provision of the Services. The Customer acknowledges and agrees that where an upfront payment is required Diverse Glazing Group will not commence provision of the Services until such upfront payment is paid.
3.2 In the event Diverse Glazing Group attends the Customer’s premises or sitein the provision of the Services (including without limitation to make measurements to order materials) and the Customer then cancels the Services (through no fault of Diverse Glazing Group), the Customer agrees to pay a service charge of $88.00 including GST per site visit to Diverse Glazing Group.
3.3 The Customer will also pay to Diverse Glazing Group, on demand, on a full indemnity basis, all amounts that Diverse Glazing Group may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Customer defaulting on any of the terms of this Agreement.
3.4 If payment is not made in accordance with this clause, Diverse Glazing Group at its entire discretion may:
(a) require the Customer to pay Diverse Glazing Group interest on all outstanding monies from the due date until the date of payment at the rate of 15% per annum, accruing daily, subject to change from time to time by written notice to the Customer at the absolute discretion of Diverse Glazing Group;
(b) demand payment and all money due under this Agreement to Diverse Glazing Group shall immediately become due and payable;
(c) refuse to supply any further part of the Goods and/or perform any further Services to/for the Customer until all outstanding monies, including any accrued interest, is paid in full;
(d) default the Customer’s national credit file with any reputable credit reporting agency;and/or
(e) terminate this Agreement whereupon the full price for the Goods and/or Services, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.
3.5 Unless otherwise stated, the Fees and any other amounts payable by the Customer under this Agreement is to be increased by any goods and services tax payable on the supply.
3.6 The Customer may not withhold payment or make any deduction from any amount owing without Diverse Glazing Group’s prior written consent, irrespective of any claim the Customer may have against Diverse Glazing Group.
4.1 Delivery of the Goods may take place either through:
(a) the Goods being installed in or attached to the Customer’s premises (or other location); or
(b) the Customer (or its employees or agents) takes possession of the Goods at Diverse Glazing Group’s address; or
(c) the Customer (or its employees or agents) takes possession of the Goods at the Customer’s address (in the event that the Goods are delivered to the Customer).
4.2 The Customer must pay all costs of delivery of the Goods at the time nominated by Diverse Glazing Group (and prior to the Goods being collected by the delivery agency) including appropriate delivery insurance.
4.3 In the event a time for the delivery and installation of Goods is agreed upon, and the Customer is not available or does not show up, a call out fee may be applied of $88.00 including GST to be paid by the Customer.
4.4 Any estimates for delivery of Goods and/or Servicesprovided by Diverse Glazing Group are an estimate only and are non-binding on Diverse Glazing Group and subject to change without notice. Diverse Glazing Group endeavours to provide the Goods and/or Services on time, however cannot guarantee the Goods and/or Services will be delivered/performed by such delivery dates (given the nature of the Services including relevant noise abating laws and machine use).A change in the delivery costs does not entitle the Customer to dispute payment of such costs. Diverse Glazing Group will not be responsible for any Losses suffered by the Customer in the event of delay.
4.5 Diverse Glazing Group may in its discretion make part deliveries of Goods as and when it considers this is required, and in that case the Customer must pay all delivery costs of each individual delivery made in accordance with this Agreement.
4.6 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. If the Customer fails to do so,Diverse Glazing Group reserves the right to charge a reasonable fee for redelivery and/or storage and may cancel the Quote if the Customer fails to take delivery on the second occasion. No refund will be given in these circumstances.
5.1 The scope of the Goods and/or Services are as specified in the Quote.
5.2 Should the Customer require additional Goods and/or Services outside those specified in the Quote, then the Customer may request Diverse Glazing Group provide such additional Goods and/or Services, and Diverse Glazing Group may accept or reject such request at its sole discretion. If it accepts such request then additional fees will be required to be paid as advised by Diverse Glazing Group at the time of request.
5.3 If Diverse Glazing Group determines that additional Goods and/or Services are required to be carried out, then Diverse Glazing Group will make all reasonable attempts to contact the Customer and stop all work associated until further instructions are provided by the Customer.
5.4 The Customer is solely liable for the payment of any additional Goods and/or Services outside of the scope specified in the Quote.
6. ACCESS TO WORKING AREA
6.1 The Customer grants (or must procure the grant to) Diverse Glazing Group and its agents, employees, contractors, service providers and any other nominees an irrevocable licence to occupy the working area of the job for the purpose of installing any Goods (such as materials), as well as a licence to pass through any other areas as required for the provision of the Services.
6.2 The Customer must ensure that the working area is completely free and has easy access, and will at all times have children and pets removed from the working area.
7. INSTALLATION SERVICES
7.1 In providing the Services to the Customer, Diverse Glazing Group will take every reasonable precaution however, will not be liable in respect of:
(a) the structural integrity of the Customer’s premises;
(b) the premises’ ability to carry the weight of any installed Goods;
(c) any effect installation of the Goods has on the Premises (including such warranties);
(d) any damage to the premises including damage to walls, internal or external flooring, ceiling, appliances or any items on the premises which is not directly due to Diverse Glazing Group’s negligence or breach of this Agreement.
8. PERSONNEL &SUBCONTRACTING
8.1 The Customer approves Diverse Glazing Group to subcontract, delegate or perform the Services through any person without the prior written consent of the Customer.
8.2 Diverse Glazing Group will use reasonable endeavours to ensure that such persons comply with the provisions of this Agreement, however a breach by such persons of this Agreement will not be deemed a breach by Diverse Glazing Group.
9. DEFECTIVE GOODS AND/OR SERVICES
9.1 Subject to the following terms, Diverse Glazing Group agrees to replace any Goods and/or Services deemed defective in accordance with this clause.
9.2 The Customer must notify Diverse Glazing Group in writing of any evident defect in the Goods and/or Services immediately on delivery or supply of the Goods and/or Services.
9.3 Defective Goods
(a) For Goods, the Customer must allow Diverse Glazing Group unimpeded access to inspect such Goods. Diverse Glazing Group may also require the Customer to send photographic proof of any defect in the Goods.
(b) Returns will only be accepted by Diverse Glazing Group provided that:
(i) the Customer has complied with its obligations under this Agreement and has not attempted to repair the Goods itself;
(ii) Diverse Glazing Group has agreed (in its reasonable opinion) that the Goods are defective;
(iii) the Goods are returned to Diverse Glazing Group as soon as possibleand being no later than 7 days after delivery, at the Customer’s cost, or as otherwise agreed between the parties; and
(iv) the Goods are accompanied by all original delivery documentation.
(c) Except as required by law, for each Good that is deemed defective and returned in accordance with this clause, Diverse Glazing Group will only be liable to provide a replacement Good.
(d) Notwithstanding this clause, Diverse Glazing Group will not be liable for or required to accept a return for any defect or damage which is caused or partly caused by or arises as a result of the Customer, fair wear and tear, or any accident or circumstance.
9.4 Defective Services
(a) For Services, the Customer must provide written notice of any defective services as soon as possible upon becoming aware of themand being no later than 7 days after completion of the Services.Diverse Glazing Group may also require the Customer to provide evidence of any defect in any Services supplied.
(b) Diverse Glazing Group will decide in its sole discretion if the Services are defective (acting reasonably).
(c) Except as required by law, for each Service that is deemed defective in accordance with this clause, Diverse Glazing Group’s liability will be limited to the supplying of the Services again or the payment of the cost of having the Services supplied again (to remedy such defect) and such replacement Services will not be carried out until the Customer’s account is paid in full. If any works are required outside the 7 day period, it will be deemed a new scope and a new quote will be provided to the Customer.
10.1 In the event the provision of the Goods and/or Services (being the works provided) are damaged or destroyed through no fault of Diverse Glazing Group, then any additional cost and expenses incurred as a result of such damage or destruction shall be chargeable to the Customer and the Customer is solely liable to pay such amounts.
11.1 The warranties contained in this clausemust be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.
11.2 The Customer warrants to Diverse Glazing Group that as at the date of this Agreement and for the duration of this Agreement:
(a) the information contained in this Agreement is true and correct and it has disclosed all relevant information to Diverse Glazing Group to assess the credit-worthiness of the Customer;
(b) the Customer is not entering this Agreement as trustee for any trust (unless disclosed)
(c) it has the legal right and power to enter into this Agreement;
(d) the execution, delivery and performance of this Agreement by the Customer has been duly and validly authorised by all necessary corporate action on its part;
(e) this Agreement is a valid and binding Agreement on the Customer, enforceable in accordance with its terms;
(f) the Customer is not bankrupt or insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over any part of its assets and no such appointment has been threatened;
(g) and no proceedings have been brought or threatened for the purpose of bankrupting or winding up the Customer;
(h) no partner, director or shareholder of the Customer is bankrupt, a discharged bankrupt or in any form of receivership, administration or liquidation; and
(i) it has the capacity to make the payment in accordance with this Agreement
12.1 Either party (Non-Defaulting Party) may terminate this Agreementimmediately by written notice to the other party (Defaulting Party) if the Defaulting Party:
(a) is in breach of this Agreement and either:
(i) fails to remedy such breach within 14 days of receiving notice from the Non-Defaulting Party requiring it to remedy such breach; or
(ii) that breach is not capable of remedy; or
(b) suffers an Insolvency Event; or
(c) in the event of Force Majeure (such as if there are issues with Diverse Glazing Group’S supplier and Diverse Glazing Group is unable to supply the agreed Goods);
(d) ceases, suspends or threatens to cease or suspend to conduct its business.
12.2 The expiration or termination of this Agreement will not prejudice any accrued rights or liabilities of either party, nor excuse either party from a breach of this Agreement occurring prior to expiration or termination of this Agreement.
12.3 Upon termination of the Agreement the Customer shall be liable to pay to Diverse Glazing Group for all Goods and/or Services supplied by Diverse Glazing Group under the Agreement up until the date of termination and any other amounts still owing by the Customer to Diverse Glazing Group and such amounts shall be a debt immediately due and owing.Diverse Glazing Group will deliver to the Customer any Goods and/or Services which have been paid for in full by the Customer.
13. OWNERSHIP, RISK AND ASSIGNMENT
13.1 Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that Diverse Glazing Group retains full title to the Goods and title will not at any time pass to the Customer until the purchase price for the Goods and all other amounts owing in respect of the Goods are paid to Diverse Glazing Group notwithstanding:
(a) the delivery or collection of the Goods to/by the Customer (as the case may be);
(b) installation in or attachment of the Goods to the Customer’s property; and/or
(c) the possession and use of the Goods by the Customer.
13.2 Even if Diverse Glazing Group retains ownership of the Goods, all risk for the Goods passes to the Customer on delivery of the Goods to the Customer or the nominee of the Customer.
13.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Diverse Glazing Group is entitled to:
(a) receive payment for the Goods; and
(b) receive all insurance proceeds payable for the Goods. The production of this Agreement by Diverse Glazing Group is sufficient evidence of Diverse Glazing Group’s rights to receive the insurance proceeds without the need for any person dealing with Diverse Glazing Group to make further enquiries.
13.4 The Customer acknowledges and agrees that:
(a) it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Goods without the express written consent of Diverse Glazing Group;
(b) it will, if requested by Diverse Glazing Group, return the Goods to Diverse Glazing Group following non-fulfilment of any obligation of the Customer (including payment of monies) without limiting any other right Diverse Glazing Group may have;
(c) it will deliver up the Goods to Diverse Glazing Group upon demand by Diverse Glazing Group and give Diverse Glazing Group or its agents or authorised representatives the right to enter any premises occupied by the Customer and any premises where it believes any Goods may be stored (without liability for trespass or any resulting damage) and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Goods and agrees to indemnify Diverse Glazing Group and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Goods from the Customer’s possession or control;
(d) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Goods on trust for and as agent for Diverse Glazing Group immediately when they are receivable or are received; and
(e) Diverse Glazing Group may recover as a debt due and immediately payable by the Customer all amounts owing by the Customer to Diverse Glazing Group in any respect even though title to the Goods has not passed to the Customer.
14. INTELLECTUAL PROPERTY
14.1 The Customer acknowledges Diverse Glazing Group’s title and/or rights to the Intellectual Property and undertakes not to take or permit or omit any action which would or might:
(a) invalidate or put in dispute Diverse Glazing Group’s interest in the Intellectual Property or any part of it;
(b) oppose any application for registration or invalidate any registration of the Intellectual Property or any part of it;
(c) support any application to remove or undo Diverse Glazing Group’s interest in the Intellectual Property or any part of it; or
(d) assist any other person directly or indirectly in any of the above.
14.2 The parties agree that any additional or further intellectual property created, formulated or discovered during the Term by either party in connection with the Goods and/or Services will be the sole and exclusive property of Diverse Glazing Group and the Customer will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such additional or further Intellectual Property to Diverse Glazing Group.
14.3 The Customer permits and authorises Diverse Glazing Group to take before and after photos of the Services performed and the Customer consents to the use by Diverse Glazing Group of such photos for marketing and other purposes, and the publishing of them worldwide (such licence is irrevocable and royalty free).
15. CONFIDENTIAL INFORMATION
15.1 The Customer acknowledges that the Customer may become acquainted with or have access to Confidential Information, and agrees to maintain the confidence of the Confidential Information and to prevent its unauthorised disclosure to or use by any other person, firm or company.
16. INDEMNITY AND RELEASE
16.1 Except as provided under this Agreement and to the extent permitted by lawthe Customer releases Diverse Glazing Group and its officers, employees and agents from any and all Claims by the Customer or any of its officers, employees, agents or invitees, except to the extent (if any that)the Loss the subject of the Claim is caused by the fraudulent act or omission of Diverse Glazing Group.
16.2 The Customer indemnifies Diverse Glazing Group against any direct losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by Diverse Glazing Group arising out of or in connection with:
(a) any claim made against Diverse Glazing Group by a third party arising out of or in connection with the provision of the Services and/or this Agreement (including any Experiences);
(b) any claim made against the Customer by a third party arising out of or in connection with the provision of the Services and/or this Agreement;
(c) any breach of this Agreement by the Customer, including any failure to pay any fees on time;
(d) arising from any event or cause, beyond the control of Diverse Glazing Group;
(e) any reliance by the Customer or a third party on the Services or any advice, information or deliverable provided in connection with the provision of the Services and/or this agreement;
(f) the enforcement of this Agreement;
(g) damage after the delivery;
(h) any problem caused by misuse, abuse, wear and tear or abnormal movement;
(i) goods or appliances made by others;
(j) any defect in, or problem caused by, work materials or goods supplied by the Customer;
(k) any problem caused by or contributed to by any modification to the Goods by the Customer; or
(l) any defect caused or contributed to by a failure of the Customer to follow any procedure recommended by Diverse Glazing Group or by the manufacturer of any materials used by Diverse Glazing Group in the Goods; and
(m) any negligent act, omission or wilful misconduct of the Customer (including any delay caused by the Customer).
16.3 The Customer must make payments under this clause:
(a) in full without set-off or counterclaim, and without any deduction in respect of taxes unless prohibited by law; and
(b) in the currency in which the payment is due, and otherwise in Australian dollars, in immediately available funds.
17. EXCLUSION AND LIMITATION OF LIABILITY
17.1 Diverse Glazing Group provides the Goods and/or Services on an “as is” basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. Diverse Glazing Group excludes all rights, representations, guarantees, conditions, warranties, undertakings, remedies or other terms in relation to the Goods and/or Services that are not expressly set out in this Agreement to the maximum extent permitted by law. The Customer relies on the Goods and/or Services at its own risk.
17.2 Without limiting the generality of clause 17.1, Diverse Glazing Group expressly excludes any liability in contract, tort or otherwise for any injury, damage, Loss, delay or inconvenience caused directly or indirectly by:
(a) the Customer’s reliance on the Services;
(b) the delivery or non-delivery of any Goods and/or Services;
(c) any event which is beyond Diverse Glazing Group’s control.
17.3 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of Diverse Glazing Group in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.
17.4 Subject to the other terms of this clause, Diverse Glazing Group’s maximum aggregate liability to the Customer in any 12-month period for any loss or damage or injury arising out of or in connection with the supply of goods or services under this agreement, including any breach by Diverse Glazing Group of this agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Customer under this agreement in the 12-month period preceding the matter or event giving rise to the claim
17.5 If Diverse Glazing Group is liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, Diverse Glazing Group’s total liability to the Customer for that failure is limited to, at the option of Diverse Glazing Group:
(a) in the case of services, the resupply of the services or the payment of the cost of resupply; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, or the repair of the goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods, or the payment of the cost of having the goods repaired.
17.6 Without limitation to the other terms of this Agreement, Diverse Glazing Group excludes any liability to the Customer, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.
18.1 The directors of the Customer agree to be bound by this Agreement as Guarantor(s).
18.2 In consideration of Diverse Glazing Group agreeing to be bound by this Agreement, the Guarantor, and where there is more than one Guarantor the Guarantors jointly and severally, as a principal obligor and not merely as surety, irrevocably and unconditionally guarantees to Diverse Glazing Group (and indemnifies Diverse Glazing Group in respect of) the due and punctual performance of all the obligations of the Customer under or arising out of the Agreement including (without limitation):
(a) the prompt payment of all amounts payable by the Customer under the Agreement;
(b) the prompt performance of all other obligations of the Customer under this Agreement;
(c) the prompt payment of all amounts for which the Customer may become liable in respect of any breach of this Agreement.
18.3 The Guarantor agrees that the Guarantor’s obligations under this guarantee and indemnity shall be unconditional irrespective of:
(a) the validity, regularity and enforceability of any provision of this Agreement;
(b) the absence of any action by Diverse Glazing Group or the Customer to enforce this Agreement;
(c) the waiver or consent of Diverse Glazing Group in respect of any provision of this Agreement;
(d) the recovery of any judgment against the Customer;
(e) any action to enforce judgment against the Customer;
(f) any variation of the terms of this Agreement;
(g) any time or indulgence granted to the Customer by Diverse Glazing Group;
(h) the winding up or dissolution of the Customer;
(i) any change in the status, function, control or ownership of the Customer;
(j) any consolidation, merger, conveyance or transfer by the Customer;
(k) any other dealing, transaction or arrangement between Diverse Glazing Group and the Customer; or
(l) any other circumstances which might otherwise constitute a legal or equitable discharge of or defence to a surety.
18.4 This guarantee and indemnity shall be a continuing guarantee and indemnity which shall not be discharged except by complete performance of all the obligations of the Customer under or arising out of this Agreement.
18.5 Diverse Glazing Group may require the Guarantor to make a payment or perform any other obligation of the Customer under or arising out of this Agreement:
(a) without first asking the Customer to do so; and
(b) irrespective of whether the payment or other obligation would be enforceable against the Customer.
18.6 The Guarantor agrees to pay and indemnify Diverse Glazing Group against all transfer duty (if any) in respect of this guarantee and indemnity
19.1 Governing Law
This Agreement is governed by the law applying in Western Australia.
Any notice required to be given in accordance with this Agreement is deemed to be sufficiently given if provided to the parties nominated address for service as set out in theQuoteand, if it is:
(a) delivered by hand, upon which the time of giving notice will be the time of delivery;
(b) sent by pre-paid post, upon which the time of giving notice will be two (2) business days after the date of postage;
(c) sent by email, upon which the time of giving notice will be the time shown on the email generated by the sending machine identifying proof of transmission to the designated email address.
The following will constitute proof of receipt:
(d) if sent by registered post, proof of posting by registered post;
(e) if sent by email, proof of sending.
Each party irrevocably submits to the exclusive jurisdiction of the courts of Western Australiaand courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
If a clause of this Agreement is void or unenforceable it must be read down to the extent necessary to give it legal effect or severed from if it cannot be read down and the remaining part and provisions shall remain in full force and effect
Diverse Glazing Group may vary the terms of the Agreement at any time and will notify the Customer of the variation by providing 30 days written notice to the Customer at the Customer’s address for service.
No party to this Agreement may rely on the words or conduct of any other party as a waiver of any right unless the waiver is in writing and signed by the party granting the waiver.
19.7 Further Acts and Documents
Each party must promptly do all further acts and execute and deliver all further documents required by law or reasonably requested by another party to give effect to this Agreement.
The Customer must not transfer or assign its rights under this Agreement without the prior written consent of Diverse Glazing Group.Diverse Glazing Group may transfer, assign or otherwise dispose of its interest in this Agreement upon giving written notice to the Customer.
This Agreement may be executed in any number of counterparts. Each counterpart constitutes an original of this Agreement and all together constitute one Agreement
Except as otherwise provided in this Agreement, each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing this Agreement.
19.11 Entire Agreement
This Agreement embodies the entire Agreement between the parties and supersede any prior negotiation, conduct, arrangement, understanding or Agreement, express or implied, in relation to the subject matter of this Agreement.
20. DEFINITIONS & INTERPRETATION
In this Agreement unless inconsistent with the context or subject matter:
(a) “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));
(b) “Agreement” means this document;
(c) “Claim”means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss;
(d) “Confidential Information” means information relating directly or indirectly to Diverse Glazing Group, its assets and the operation and affairs of Diverse Glazing Group, including without limitation, this Agreement and the Goods and Services;
(e) “Fees” means the price payable for the Goods and/or Servicesin accordance with clause 2;
(f) “Force Majeure” means an act, omission or circumstance over which Diverse Glazing Group could not reasonably have exercised control;
(g) “Goods” means those goods that Diverse Glazing Groupagrees to supply to the Customer pursuant to theQuote;
(h) “GST” has the meaning given to it in the A New Tax System (Goods and/or Services Tax) Act 1999 (Cth);
(i) “Intellectual Property” means all copyright, trademarks, patents, processes, know-how, designs and other like rights whether recorded in writing or otherwise of Diverse Glazing Group;
(j) “Loss” includes (without limitation) the following, whether direct or indirect, special or consequential in nature:
(i) loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and
(ii) to the extent not covered in the preceding subclause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales turnover, income, reputation (or damage to it), employment, corruption or destruction of data, customers, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and
(iii) anything referred to in the preceding subclauses relating to or arising out of or in connection with:-
A. personal injury (including death or disease) to the Customer;
B. personal injury (including death or disease) to any third party; or
C. loss of or damage to the property of Diverse Glazing Group, the Customer or any third party; and
D. a breach or non-compliance by Diverse Glazing Group or the Customer with any law;
(k) “PPSA” means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;
(l) “PPS Register” means the Personal Property Securities Register established under the PPSA;
(m) “Quote” means the quoteattached to these terms or any other documentation, correspondence or order placed by the Customer for Goods and/or Services in accordance with this Agreement;
(n) “Services” means those services thatDiverse Glazing Groupagrees to supply to the Customer pursuant to theQuote;
(o) “Term” means the term of this Agreement commencing and expiring in accordance with the Purchase Order.
In this Agreement unless inconsistent with the context or subject matter:
(a) A reference to a person includes any other legal entity and vice versa;
(b) Words importing the singular number include the plural number and vice versa;
(c) A reference to a party includes the party’s heirs, executors, successors and permitted assigns;
(d) Clause headings are for reference purposes only and must not be used in interpretation;
(e) Where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;
(f) A reference to a statute includes all regulations and subordinate legislation and amendments;
(g) References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;
(h) A reference to a monetary amount is a reference to an Australian currency amount;
(i) An obligation of two or more parties binds them jointly and each of them severally;
(j) An obligation incurred in favour of two or more parties is enforceable by them severally;
(k) Reference to time are to local time in Western Australia;
(l) Where time is to be reckoned from a day or event, the day or event must be excluded, and reference to a month means a calendar month;
(m) A reference to a business day means any day on which trading banks are open for business in Adelaide; and
(n) If any time period specified in this Agreement expires on a day which is not a business day, the period shall expire at the end of the next business day.