Terms and Conditions
NORDEN STANDARD TERMS AND CONDITIONS OF TRADE
These terms are the terms and conditions on which Norden Hydraulic Connections Pty Ltd (ABN 21 137 865 500) or Norden Body Works Pty Ltd (ABN 80 137 904 682) (as applicable) (“Supplier”) will supply Products to you (“Customer”) from time to time. By ordering, purchasing or receiving or continuing to order, purchase or receive Products from the Supplier, the Customer agrees that it is bound by these terms. These terms constitute the Customer’s agreement with the Supplier, and apply to the exclusion of any inconsistent terms.
1. Definitions
In this agreement, unless the context clearly indicates otherwise:
Customer means the person(s) or company named as such in the Customer Application;
Customer Application means the credit/order application attached to this agreement and forms part of this agreement;
Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure, not able to be overcome by the exercise of due care, proper precautions and the consideration of reasonable alternatives with the intention of avoiding the effects of the force majeure by that party, and which could not have been reasonably foreseen;
GST means GST within the meaning of the GST Act;
GST Act means the A New Tax System (Goods and Services Tax) Act 1999;
Government Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity;
Guarantor means the guarantor(s) (if any) named in any Customer Application;
Intellectual Property Rights means any and all intellectual property rights worldwide, subsisting whether now or in the future, and whether registered or unregistered including designs, copyright, trade marks and service marks including names and logos, patents, inventions, trade secrets, moral rights, trade, business or company names or other intellectual property rights, or any rights to registration of such rights;
Law means:
(a) the present or future requirements of any statute, regulation, order, rule, subordinate legislation, common law, equity or other document enforceable under any statute, regulation, rule or subordinate legislation, common law or equity; and
(b) lawful requirements, directions or instructions of any Government Agency;
Personal Information has the meaning given under the Privacy Laws;
Price means the price payable for the Products as agreed between the Supplier and the Customer in accordance with clause 6 of this agreement;
Privacy Laws means the Privacy Act 1988 (Cth) together with all legislation, principles, industry codes and policies relating to the collection, use, disclosure, storage or granting or access rights to Personal Information;
Product means all goods and services supplied by the Supplier to the Customer at the Customer’s request and includes any advice or recommendations; and
Supplier means Norden Hydraulic Connections Pty Ltd (ABN 21 137 865 500) or Norden Body Works Pty Ltd (ABN 80 137 904 682) (as applicable), or any person acting on behalf of and with the authority of Norden Hydraulic Connections Pty Ltd or Norden Body Works Pty Ltd.
2. Interpretation
In this agreement unless the context clearly indicates otherwise:
(a) a reference to this agreement or another document means this agreement or that other document and any document which varies, supplements, replaces, assigns or novates this agreement or that other document;
(b) a reference to legislation or a legislative provision includes any statutory modification, or substitution of that legislation or legislative provision and any subordinate legislation issued under that legislation or legislative provision;
(c) a reference to a clause is a reference to a clause to or of this agreement;
(d) clause headings are inserted for convenience only and do not form part of this agreement;
(e) a reference to a person includes a natural person, corporation, statutory corporation, partnership, the Crown or any other organisation or legal entity;
(f) a reference to a natural person includes their personal representatives, successors and permitted assigns;
(g) a reference to a corporation includes its successors and permitted assigns;
(h) including and includes are not words of limitation;
(i) the words at any time mean at any time and from time to time;
(j) a word that is derived from a defined word has a corresponding meaning;
(k) a reference to a time is to that time in Victoria;
(l) monetary amounts are expressed in Australian dollars;
(m) the singular includes the plural and vice-versa; and
(n) neither this agreement nor any part of it is to be construed against a party on the basis that the party or its lawyers were responsible for its drafting.
3. CUSTOMER’s ACCEPTANCE OF TERMS AND CONDITIONS
(a) These terms and conditions, as amended from time to time by the Supplier, apply to all orders and sales of Products by the Supplier to the Customer.
(b) These terms and conditions supersede any earlier terms and conditions wherever published or applying between the Supplier and the Customer, and shall be deemed to override all oral and written agreements and negotiations by either party prior to the making of these terms and conditions. The Customer will be deemed to have accepted these terms and conditions if the Customer places any order or otherwise deals with the Supplier after receiving notice of these terms and conditions. The Customer will be deemed to have accepted these terms and conditions in the foregoing circumstances, despite any request by the Supplier for the Customer to sign a copy of the terms and conditions or otherwise acknowledge the acceptance of these terms and conditions, and despite any omission or refusal of the Customer to do so.
4. The Competition and Consumer Act 2010 (CTH) and Fair Trading Acts
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law) or the Fair Trading Acts (Acts) in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
5. Quotations and Orders
(a) Any quotation provided by the Supplier to the Customer is not to be construed as an obligation to sell but merely an invitation to treat only, and no contractual relationship shall arise from it until the Customer’s order has been accepted by the Supplier. Unless previously withdrawn, a quotation is valid for 30 days or such other period as stated in it.
(b) The Supplier reserves the right to accept or reject any order it receives from a Customer.
(c) Until the Supplier accepts in writing an order submitted by the Customer, the Supplier is not obliged to supply to the Customer the Products ordered.
(d) If an order is accepted by the Supplier and the Customer cancels its order more than 7 days after the date that the order was accepted by the Supplier, the Customer will forfeit any deposit paid on the order.
(e) If the Customer defaults under these terms and conditions, the Supplier may cancel, suspend or vary the terms and conditions of any incomplete order that has been accepted by the Supplier without notice to the Customer and without being liable to the Customer.
(f) The Customer must give the Supplier not less than 14 days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including changes in the Customer’s address, email or business practice). The Customer is liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause and the Supplier may terminate any credit arrangements or supply of Products to the Customer if the Customer does not comply with this clause.
(g) The Supplier may in its absolute discretion set any credit limit that the Supplier believes is necessary and once that credit limit is reached may in its absolute and unfettered discretion refuse or cease to accept any orders for Products or make any deliveries of Products until all moneys owing by the Customer are paid to the Supplier.
(h) Any application to increase or to extend any credit limit set by the Supplier must be made by the Customer to the Supplier in a Customer Application. The Supplier may refuse any Customer Application made by the Customer to the Supplier to increase or extend any credit limit in its absolute and unfettered discretion.
6. Prices
(a) At the Supplier’s sole discretion, the Price is either:
(i) as indicated on invoices provided by the Supplier to the Customer in respect of the Product supplied; or
(ii) The Supplier’s quoted Price (subject to clause 6(b)) which is binding on the Supplier provided that the Customer accepts the Supplier’s quotation in writing within the timeframe referred to in clause 5(a).
(b) The Supplier reserves the right to change the Price in the event of a variation to the Supplier’s quotation as a result of, but not limited to, additional costs, increase in taxes, fees, levies, charges or duties that may be applicable, or as a result of the Customer requesting a variation to the Products.
(c) Unless expressly stated by the Supplier, the measurement of quantities for the purpose of calculating payments due to the Supplier is on the basis of the quantities shown on the delivery docket, receipt or manifest.
(d) At the Supplier’s sole discretion a deposit may be required before any Product is supplied.
(e) Prices quoted in any order apply to that order only and do not apply in any other circumstances.
(f) GST and other taxes, fees, levies, charges and duties, including, but not limited to, sales tax, stamp duty, customs duty, banking fees and currency exchange fees that may be applicable must be added to the Price except when they are expressly included in the Price.
7. Payment
(a) At the Supplier's sole discretion:
(i) full payment may be required on delivery or provision of the Products; or
(ii) full payment may be required before delivery or provision of the Products; or
(iii) payment for approved Customers may be allowed by instalments in accordance with the Supplier’s payment schedule which must be recorded in writing before it is deemed to have been accepted by the Supplier.
(b) If no time for payment is stated on the Supplier's invoice then payment must be made within 30 days following the date of the invoice.
(c) Payment must be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method agreed to between the Customer and the Supplier. Payments made on the date of delivery (where the Supplier has agreed to payment on such date) can only be made by cash or direct credit.
8. Default and Consequence of Default
(a) Interest on overdue invoices accrues daily from the date when payment was due, until the date of payment, at a rate of four percent (4%) higher than the rate prescribed from time to time by the Penalty Interest Rates Act 1983 (Vic).
(b) The Customer is liable for any dishonour fees incurred by the Supplier if the Customer’s payment is dishonoured for any reason.
(c) The Customer must pay the Supplier all costs and disbursements incurred by the Supplier in pursuing payment of any unpaid invoice rendered to a Customer if it has not been paid when due, including legal costs on a solicitor and own client basis and the Supplier’s collection agency costs.
(d) Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Products to the Customer and any of its other obligations under this agreement. The Supplier is not liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
(e) Without prejudice to the Supplier’s other remedies at Law, the Supplier is entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier, whether or not due for payment, are immediately payable if:
(i) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to meet its payments as they fall due; or
(ii) 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
(iii) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
9. Risk in the Product
(a) The risk of loss or damage to the Products passes to the Customer on delivery.
(b) If any of the Products are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Products. The production of this agreement by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
(c) The Products are to be manufactured and finished to a standard determined by the Supplier, unless otherwise agreed to in writing between the Customer and the Supplier.
(d) Any design or description of, use, capacity, durability, colour, manner of installation information detail contained in drawings, data sheets, technical brochures or other documents provided by the Supplier are given as a general guide only and the Customer acknowledges satisfaction as to the suitability of the Products for the Customer’s particular purpose, use or application and the Supplier is not be liable in these respects.
(e) Where the Supplier supplies Products according to the Customer’s designs, plans, specifications or directions, the Customer warrants that the information is correct, accurate and sufficient for the specified purpose. The Supplier is not liable for any loss, damage or injury howsoever arising in connection with the supply or provision of Products, as a result of the information supplied by the Customer.
(f) The Supplier is not liable for the adequacy of installation of the Products, nor is it liable for the performance of the Products being adversely affected by the work of other products, materials or goods (including, but not limited to, base material or structure to which the Products are affixed).
10. Delivery
(a) At the Supplier’s sole discretion delivery of the Products takes place when:
the Customer takes possession of the Products at the Supplier’s address; or
(ii) a delivery docket is signed by the Customer; or
(iii) the Customer takes possession of the Products at the Customer’s nominated address (in the event that the Products are delivered by the Supplier or the Supplier’s nominated carrier).
(b) At the Supplier’s sole discretion the costs of delivery are in addition to the Price. In cases where the Products are to be shipped overseas the Customer must arrange and pay for the shipment. The Supplier will only be responsible to arrange the shipment of Products overseas if the Supplier agrees to do so in writing, but if the Supplier has agreed to arrange the shipment of the Products overseas the Customer must pay the Supplier all costs incurred in arranging and shipping the Products.
(c) The Customer must make all arrangements necessary to take delivery of the Products whenever they are tendered for delivery. If the Customer is unable to take delivery of the Products as arranged or delivery is delayed by the Customer, then the Supplier is entitled to charge a reasonable fee for such delay or redelivery (including, but not limited to, storage and/or handling costs).
(d) Delivery of the Products to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
(e) The Supplier may deliver the Products by separate instalments. Each separate instalment must be invoiced and paid in accordance with the provisions in this agreement.
(f) The Customer must take delivery of the Products tendered notwithstanding that the quantity so delivered is either greater or lesser than the quantity purchased provided that:
such discrepancy in quantity does not exceed five percent (5%); and
(ii) the Price is adjusted pro rata to the discrepancy.
(g) The failure of the Supplier to deliver does not entitle either party to treat this agreement as repudiated.
(h) The Supplier is not responsible to the Customer for a breach of its obligation to supply the Products pursuant to an order the Supplier has accepted, or for any delay in delivery, if the failure or delay is caused by matters beyond the reasonable control of the Supplier (including Force Majeure).
(i) If Products ordered by the Customer are not available at the time of order they will be supplied by the Supplier when available, and the Supplier shall not be liable to the Customer to make good any damage or loss whether arising directly or indirectly as a result of any ensuing delay in delivery.
(j) If the Customer requests the Supplier to take back any surplus Products due to the Customer over ordering, at the sole and absolute discretion of the Supplier, the Supplier may accept the surplus Products but the Customer may incur a restocking fee of fifteen percent (15%) of the value of the surplus Products and pay for any costs of having those surplus Products returned to the Supplier.
(k) The Customer must contact the Supplier and report damage caused to the Products while in transit or when being off loaded before the delivery is complete, otherwise a certificate by the Supplier or its dispatching officer confirming that the Products were inspected and were not damaged at the time of departure from the Supplier's premises will be prima facie evidence of the things stated in the certificate.
(l) If the Products are being shipped overseas the Supplier will arrange insurance to cover any loss or damage to the Products while in transit. Insurance cover will end once delivery of the Products takes place pursuant to clause 10(a). The Customer must pay or reimburse the Supplier for all insurance premiums and costs incurred by the Supplier.
(m) Any delivery times notified to the Customer are estimates only and although the Supplier will endeavour to deliver products on time, the Supplier is not responsible for late delivery.
(n) Unless otherwise specified in the order, delivery charges will be based on the Supplier’s standard charges as may be notified to the Customer from time to time.
(m) No products will be shipped until such time that the Supplier receives full payment of the goods from the Customer.
11. Specifications
(a) Where the Supplier manufactures or supplies Products, to the sizes, specifications or instructions provided by the Customer, any assistance given by the Supplier in determining the correct sizes for fabrication does not relieve the Customer of the obligation to advise the Supplier of correct sizes and specifications.
(b) The Customer is responsible for ordering Products of a quality and nature which complies with applicable standards and statutory requirements.
12. Tests and Reports
(a) Where the Customer requires the Products to be subject to a special test or inspection, the Customer is liable for all costs of such testing or inspection.
(b) Any inspector or other person(s) attending the Supplier’s premises on behalf of the Customer is required to provide the Supplier written authorisation by the Customer prior to the Supplier allowing entry into the premises.
(c) The Customer must provide the Supplier with copies of all authorisations, test results, measurements and reports prepared by or for the Customer in relation to the Products.
13. Permission to enter customer’s premises
The Customer grants permission to the Supplier and its employees, contractors and/or agents to enter, at any time, any property where any Products supplied by the Supplier to the Customer are to be installed and commissioned, and for the purposes of pre-inspecting the property prior to any installation of Products. The Customer agrees to make themselves present at the property for such pre-inspection, installation and/or commissioning, when and as reasonably required by the Supplier or its employees, agents and contractors.
14. Retention of Title
(a) The Supplier and Customer agree that ownership of the Products does not pass until:
the Customer has paid the Supplier all amounts owing for the particular Products; and
(ii) the Customer has met all other obligations due by the Customer to the Supplier in respect of all agreements between the Supplier and the Customer.
(b) Receipt by the Supplier of any form of payment other than cash is not deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership or rights in respect of the Products continue.
15. Personal Property Securities Act 2009 Cth (“PPSA”)
(a) Unless otherwise stated, a term contained in this agreement that is defined in the PPSA (but not otherwise in this agreement) has the meaning given to it in the PPSA.
(b) In consideration for the Supplier supplying Products to the Customer under the terms and conditions contained in this agreement, the Customer agrees to treat the security interest created under this agreement as a continuing and subsisting security interest in the relevant Products with priority over any registered or unregistered general (or other) security and any unsecured creditor (even if the Products become fixtures before paid for in full).
(c) The Customer hereby waives its rights under the following sections of the PPSA: section 95 (notice of removal of an accession) to the extent that it requires the secured party to give a notice to the grantor; section 96 (when a grantor may retain an accession); section 123 (right to seize collateral); section 125 (obligation to dispose of or retain collateral); section 126 (apparent possession); section 128 (secured party may dispose of collateral); section 129 (disposal by Customer); section 130 (notice of disposal) to the extent that it requires the secured party to give notice to the grantor; paragraph 132(3)(d) (contents of statement of account after disposal); subsection 132(4) (statement of account if no disposal); subsection 134(1) (retention of collateral); section 135 (notice of retention); section 142 (redemption of collateral); and section 143 (reinstatement of security agreement).
(d) The Supplier reserves the right to register a financing statement under the PPSA in respect of the Products. Costs of registering a financing statement (or a financing change statement) will be paid by the Customer. The Customer waives its right to receive a copy of any financing statement, financing change statement or verification statement that is or may be registered, issued or received at any time.
16. Claims and liabilities
(a) Subject to clause 16(b), the Supplier excludes its liability to the Customer in contract, tort, statute or in any other way for any costs, damage or loss of any kind whatsoever (including, without limitation, liability for direct, indirect, special or consequential loss or damage) incurred or sustained by the Customer or any third party arising from or in connection with this agreement or the Customer’s order.
(b) Subject to clause 18 and to the extent permitted by Law, all express or implied warranties or guarantees are excluded. If any Law implies terms into this agreement which cannot be excluded, those terms will apply to this agreement. To the extent permitted by Law, the total liability of the Supplier (and its employees, contractors and agents) for breach of any such implied term or for a breach of the terms and conditions of this agreement will be limited, at the option of the Supplier, to any one or more of the following:
(i) replacement of the Product supplied or the supply of an equivalent Product;
(ii) payment of the cost of replacing the Product or of acquiring an equivalent Product; or
(iii) payment of the cost of having the Product repaired.
(c) For the purpose of making any claim under this clause 16, the Customer must:
(i) immediately upon becoming aware of circumstances giving rise to a claim, notify the Supplier in writing setting out full details of the claim;
(ii) provide the Supplier with proof of purchase of the Products in relation to which the claim is made; and
(iii) allow the Supplier, its employees and/or agents full and free access to the Products in relation to which the claim is made and to the place where the Products are located for the purpose of conducting any inspection and tests that the Supplier may in its absolute discretion consider necessary to determine whether the claim is justified or not.
(d) The Supplier will decide how to address the claim in its absolute discretion, and in any event, the Supplier’s total liability will be limited in the manner described in clause 16(b).
17. Defects
(a) The Customer is deemed to have inspected the Products on delivery and unless within 10 days of delivery (time being of the essence) the Customer notifies the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote, the Products are deemed to have been delivered free from any defect or damage.
(b) The Customer must afford the Supplier an opportunity to inspect and test to the Supplier's satisfaction the Products within a reasonable time following delivery if the Customer notifies the Supplier that the Products are defective in any way. For defective Products, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Products or repairing the Products except where the Customer has acquired Products as a consumer within the meaning of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the price or repair of the Products, or replacement of the Products.
(c) Products will not be accepted for return other than in accordance with this clause 17.
18. Warranties
(a) The Supplier warrants that any Products sold by it will be free from any structural defects in workmanship and material under normal use for a period of 12 months after the date of purchase.
(b) The warranty in clause 18(a) does not cover:
(i) any Product parts and accessories which are not manufactured by the Supplier, and in that case the Customer will only have the benefit of the warranty (if any) of the manufacturer of those Product parts and accessories which forms part of the contract between the Supplier and the manufacturer; or
(ii) defects or deterioration which, in the opinion of the Supplier, have been caused by careless or improper handling, negligence, misuse, non-adherence to operating, cleaning, care or maintenance instructions, alterations or repairs carried out by anyone other than the Supplier’s authorised representatives, or by fair wear and tear.
(c) This warranty cannot be assigned or transferred to any third party.
19. Cancellation
(a) The Supplier may cancel any contract to which this agreement applies or cancel delivery of Products at any time before the Products are supplied or delivered by giving written notice to the Customer. On giving such notice the Supplier must repay to the Customer any sums paid by the Customer in respect of the Price. The Supplier is not liable for any loss (including consequential loss) or damage arising from such cancellation.
If the Customer cancels delivery of Products, the Customer is liable for any loss or damage incurred by the Supplier (including, but not limited to, consequential loss and any loss of profits) up to the time of cancellation.
20. Intellectual property RIGHTS
(a) All Intellectual Property Rights of the Supplier, including any developed during the supply of the Products, is the sole property of the Supplier.
(b) The Customer acknowledges and agrees that the Intellectual Property Rights created, discovered or coming into existence as a result of, or for the purpose of, or in connection with the supply of the Products automatically vests in the Supplier upon creation, and to the extent necessary, the Customer hereby assigns to the Supplier all such Intellectual Property Rights both in existence as of the date of this agreement and as may arise in the future.
(c) The Customer warrants that all designs and specifications supplied by the Customer or instructions to the Supplier given by the Customer will not cause the Supplier to infringe the Intellectual Property Rights of any third party in the execution of the Customer’s order.
(d) The Customer shall indemnify the Supplier against all claims, costs and liability arising out of any infringement or alleged infringement of any Law or the Intellectual Property Rights of any third party in connection with the supply of Products at the Customer’s request or specification.
21. GST
(a) Except where this agreement states otherwise an amount payable by a party for a taxable supply made by another party under this agreement is expressed as a GST exclusive amount.
(b) If this agreement requires a party to pay an amount in respect of an expense or liability (Reimbursable Expense) incurred by another party (Payee) to a third party, the Reimbursable Expense must be net of any input tax credit to which the Payee is entitled in respect of the Reimbursable Expense.
(c) If a party makes a taxable supply under this agreement, then the party liable to pay for the taxable supply must also pay to the supplier the GST payable in respect of the taxable supply at the time payment for the taxable supply is due.
(d) A party is not obliged under this clause to pay the GST on a taxable supply to it, until given a valid tax invoice for the supply.
22. Privacy
(a) The Customer and/or the Guarantor(s) consents to the Supplier obtaining from a credit-reporting agency, or similar body, a credit report containing Personal Information about the Customer and/or the Guarantor(s) for the purpose of assessing the Customer’s and/or the Guarantor(s) creditworthiness.
(b) The Customer and/or the Guarantor(s) agrees that the Supplier may exchange information about the Customer and/or the Guarantor(s) named in the Customer Application with those credit providers for the purposes of, including but not limited to, assessing a Customer Application or notifying of a default.
(c) The Customer and/or the Guarantor(s) agrees that personal data provided may be used and retained by the Supplier for, without limitation, the provision of Products, marketing, processing payment instructions, and enabling the general operation of the Customer’s credit account.
23. Confidentiality
If at any time the Supplier discloses to the Customer, or the Customer becomes aware of, confidential information of the Supplier, including information which relates to the Supplier’s Products, business, trade, affairs, customers, property, equipment, materials, procedures, tests, designs or activities and which is generally not available to the public or known in the industry, the Customer must not use the confidential information for any purpose not approved by the Supplier and must not disclose that confidential information to any other person(s) unless expressly agreed to in writing by the Supplier or as required by Law.
24. Force Majeure
(a) Without limiting any other provisions in this agreement, the Supplier is not liable to the Customer for any failure to perform any of the stipulations of this document or to deliver any Products on time as a result of Force Majeure.
(b) If the Supplier is prevented in whole or in part from carrying out its obligations under this agreement as a result of Force Majeure, it must promptly give a notice to the Customer that:
(i) specifies the obligations the party cannot perform; and
(ii) describes the event of Force Majeure.
(c) Following the notice referred to in clause 24(b) and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended.
(d) The Supplier agrees to remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
25. Dispute resolution
(a) A party may give the other party notice of a dispute in connection with this agreement in relation to any dispute arising out of or in connection with this agreement (Dispute Notice).
(b) The parties will endeavour to resolve the dispute within 10 days of receipt of the Dispute Notice or such other period as may be agreed upon by the parties.
(c) If after the period specified in clause 25(b), the parties have not been able to resolve the dispute, the dispute will be referred to a duly qualified mediator who is agreed to between the parties, or failing such agreement, who is appointed by the President for the time being of the Law Institute of Victoria. Each party is to pay its own costs associated with the mediation, except the cost of the mediator is to be shared equally between the parties.
(d) A party may not commence legal proceedings (except proceedings seeking urgent interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with the dispute resolution procedure described in clauses 25(a) to 25(c).
26. Governing law
This agreement is governed by the Laws of the State of Victoria, Australia (regardless of the place in which the Products are to be delivered), and the Customer irrevocably submit to the exclusive jurisdiction of the courts of that State.
27. Variation
No variation of or addition to the terms and conditions contained in this agreement will be binding unless produced in writing and signed by both parties hereto or their duly authorised representatives.
28. No waiver
The Supplier’s failure to exercise or delay in exercising any right, power or privilege will not operate as a waiver of any such right, power or privilege. Any leniency, indulgence or extension of time which may be granted by the Supplier to the Customer will not prejudice any of the Supplier’s rights in any way, nor will they constitute a waiver of any of the Supplier’s rights.
29. No reliance
The Customer represents and warrants that it has not entered into this agreement (on the terms and conditions recorded herein) in reliance on any representation expressly or impliedly given by or on behalf of the Supplier, other than to the extent that a relevant representation is expressly recorded in the terms and conditions of this agreement.
30. Severance
If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal.
If this is not possible, the clause (or where possible, the offending part) is to be severed from this agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
31. WEBSITE USE
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32. Whole agreement
These terms and conditions, and any warranties implied by Law, which are not capable of being excluded or modified embody the whole agreement between the parties and, subject to the express terms contained in any written order and written acceptance of the order (which will only apply to that particular order), all previous negotiations, representations, warranties, arrangements and statements (if any), whether express or implied regarding the subject matter or the intentions of either of the parties are merged in these terms and conditions and otherwise are excluded and cancelled.