EDGE ELECTRONS (AUSTRALIA) PTY LTD
TERMS OF SALE
1. DEFINITION
“ACL” means the Australian Consumer Law.
“Act” means the Corporations Act 2001 (Cth).
“Company” means Edge Electrons (Australia) Pty Ltd, 17 Prince Patrick Road, Melbourne AUS (ABN 94 168 621565 and its successors and assigns.
“Confidential Information” means any written or oral information of a technical, business or financial nature or which is taken by any provision of these Terms to be Confidential Information, or which the Company makes the Customer aware is considered by the Company to be confidential and proprietary, and includes all information that is personal information for the purposes of the Privacy Act 1988 (Cth), but does not include information which the Customer can establish:
a) was in the public domain when it was given to the Customer;
b) becomes, after being given to the Customer, part of the public domain, except through disclosure contrary to these Terms of Sale;
c) was in the Customer’s possession when it was given to the Customer and had not been acquired in some other way (directly or indirectly) from the Company; or
d) was lawfully received from another person who had the unrestricted legal right to disclose that information free from any obligation to keep it confidential.
“Customer” means the party acquiring Goods on these Terms.
“Default Rate” means the 1.5%.
“Delivery” means delivery of the Goods by the Company to the Customer in accordance with clause 9.
“Goods” mean any Edge Power Factor Correction equipment to be installed in low harmonic environments that the Company offers for sale.
“GST” has the meaning given to that term in the GST Law.
“GST Law” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Insolvency Event” means, for a person, being in liquidation or provisional liquidation or administration, having a controller (defined in the Act) or similar appointed to it or its property, being taken under s459F(1) of the Act to have failed to comply with a statutory demand, being unable to pay its debts or otherwise insolvent, dying, ceasing to be of full legal capacity or becoming incapable of managing its affairs for any reason, taking any step that could result in becoming insolvent under administration (defined in the Act), entering a compromise or arrangement with, or assignment for the benefit of, its members, creditors or any analogous event.
“Intellectual Property Rights” means all present and future rights throughout the world conferred by statute, common law (including passing off) or equity in or in relation to inventions, discoveries, innovations, know-how, technical information and data, prototypes, processes, improvements, patent rights, circuitry, drawings, plans, specifications, copyright, trade mark rights, designed rights, plant variety rights and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields, whether or not registrable, registered, or patentable. These include all rights in all applications to register these rights, all renewals and extensions of these rights and all rights in the nature of these rights.
“Order” means a Purchase Order provided by the Customer to the Company.
“PPSA” means Personal Property Securities Act 2009 (Cth).
“PPSR” means the Personal Property Securities Register established pursuant to the PPSA.
“Purchase” Order means a written document provided by the Customer to the Company, containing the delivery date, delivery point, the Goods to be purchased and the price for Goods to be purchased.
“Quote” means any quote provided by the Company to the Customer that remains valid for 20 days, unless otherwise specified by the Company.
"Secured Property” means all Goods that are supplied to the Customer by the Company (whether now or in the future).
“Security Interest” is defined in section 12 of the PPSA.
“Terms” means these terms conditions of sale which apply to and are incorporated into, an Order to the exclusion of any other terms and conditions contained in any purchase order, letter or other documents of the Company, unless otherwise agreed in writing by the parties.
“Warranty Period” means a period of thirty-six (36) months from the date of Delivery (unless otherwise advised by the company).
2. GENERAL
2.1. The Company agrees to supply and the Customer agrees to take the Goods in accordance with these Terms.
2.2. These Terms are deemed to be incorporated into all Orders for Goods by the Company to the Customer, and will prevail over any inconsistent terms in any of the Customer’s documents, or any other terms conditions unless otherwise agreed by the Company in writing.
2.3. If the Customer places an Order with the Company for Goods, or enters into a contract with the Company for the Goods, and the Goods are delivered or provided to the Customer, or the Customer provides any payments to the Company, the Customer is taken to have accepted these Terms.
2.4. The Customer must, no less than 14 days prior to any change of ownership, registered particulars, shareholding, directorship, name or address, notify the Company of the proposed change.
3. QUOTATION AND ORDER
3.1. Any quotation for Goods prepared by the Company is not an offer by the Company and it may be withdrawn or altered without notice. Unless the Company withdraws it, a quotation is valid for the stated period or if no period is stated, 20 days after the date of quotation.
3.2. Notwithstanding the above, any quotation provided by the Company is an invitation to treat only and not an obligation to sell or offer and the Company reserves the right at its option, to accept or reject any Orders received.
3.3. All Orders submitted by the Customer to the Company for Goods will constitute an offer and will be subject to acceptance by the Company in its absolute discretion.
3.4. Orders cannot be modified or cancelled after acceptance by the Customer except with the Company’s written consent. The Company will not agree to cancellation of an Order unless the Customer pays to the Company a reasonable cancellation charge (as set by the Company) including compensation for all loss and damage arising from the cancellation of the Order.
4. GOODS
4.1. When the Customer orders Goods, the Customer must inspect the Goods provided by the Company immediately on supply of the Goods to the Customer, and must within 14 days after the date of supply of the Goods (Supply Date) give written notice to the Company of any claim in the event that the Goods are defective, supplied in error, or if there are any discrepancies in the quantity delivered (including particulars of the claim).
4.2. If the Customer fails to give written notice to the Company pursuant to clause 4.1 above, then to the extent permitted by law, the Goods are deemed to have been accepted by the Customer in accordance with these Terms.
4.3. The Company may immediately cancel any Order (in whole or in part) by notice to the Customer and resell the Goods if the Customer fails to comply with any its obligation under these Terms or under a contract for the supply of Goods, or if an Insolvency Event occurs in respect of the Customer.
4.4. Upon cancellation of any Order, the Customer must indemnify the Company for any costs and expenses incurred by the Company prior to cancellation and must pay any reasonable cancellation charges fixed by the Company.
4.5. This clause 4 is at all times subject to clause 12.
5. PRICE OF GOODS
5.1. Unless the Company agrees in writing and subject to any quotation given under clause 3, the price of the Goods will be the price usually charged by the Company. Any price concession provided to the Customer is conditional on the Customer’s strict compliance with these Terms.
5.2. Prices quoted are in Australian Dollars unless stated otherwise and are those applying at the date of issue of quotation subject to adjustment (including a proportional adjustment for fixed costs and profit) for any variation in the cost of labour, material or transport, exchange rates, customs duty, freight, shipping expenses, sorting an d tracking charges or insurance and any other charges affecting the cost of production.
5.3. Unless a price quoted by the Company is stated to be inclusive of GST, it will be deemed exclusive of GST.
6. PAYMENT TERMS AND DEFAULT
6.1. The Company will issue an invoice to the Customer with respect to the Goods sold by the Customer, on the date the Goods are sold by the Customer.
6.2. Unless clause 6.3 applies or otherwise agreed in writing by the Company, the Customer must pay for the Goods within 14 days of the date of the invoice for the Goods.
6.3. The time for payment of the Goods is of the essence, and all payments must be made on or before the due date as a condition to future deliveries of Goods under these Terms.
6.4. The Company reserves the right to vary the terms of payment and to require additional security at any time prior to delivery of the Goods if the creditworthiness of the Customer becomes, in the Company’s opinion, unsatisfactory, in which the case the Company may request appropriate security from the Customer on terms acceptable to the Company.
6.5. The Company may require immediate payment of all amounts outstanding (whether or not then due and payable):
a) if the Customer does not comply with these Terms;
b) if the Company considers that the creditworthiness of the Customer has become unsatisfactory; or
c) if one or more Insolvency Events occur.
6.6. All payments must be made by cheque or by direct credit to the Company’s nominated bank account as stated on the invoice (or another method agreed by the Company in writing from time to time).
6.7. If the Customer has not paid the Company in full any monies owing to the Company by the due date, the Company may in its sole discretion without giving the Customer prior notice terminate these Terms (or the applicable underlying contract) and seek to recover the Goods and resell or dispose of the Goods, without prejudice to any claims for loss or damages against the Customer.
6.8. In the event that the Customer has not paid any monies owing to the Company by the due date, the Customer is liable to pay the Company’s reasonable costs with respect to collecting any overdue monies, including without limitation legal fees, debt collection costs and payment of the Company’s administrative costs.
6.9. Without limiting any other rights of the Company, any monies owing under these Terms which are not paid when due will bear interest at the Default Rate, calculated daily and compounded monthly on and from the date such monies first become due to the Company.
7. DISCREPANCY AND RETURN OF GOODS
7.1. The Company is not obligated to accept in any case the return of Goods for credit.
7.2. The Customer must, within 14 days of receipt of the Goods, notify the Company that it wishes to return the Goods to the Company including a statement confirming why the Goods are being returned to the Company. If the Company agrees to accept the returned Goods, the Company will provide the Customer with a return authorization number (Authorization Number).
7.3. Upon receipt of the Authorization Number the Customer has 7 days to return the Goods to the Company. Any Goods returned to the Company after 7 days of receipt of the Authorization Number will incur a restocking fee.
7.4. The Goods must be in their original saleable packaging and include all accessories, manuals and instructions.
7.5. The Customer must bear the cost of the return freight and transport charges for returned Goods unless the Company otherwise agrees in writing.
8. GST
8.1. Unless otherwise stated, the prices stated in these Terms and in any price list are exclusive of GST.
8.2. In addition to the price for the Goods, the Customer must pay to the Company an amount equal to any GST the Customer must pay for any supply by the Company under these Terms.
8.3. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the price for the Goods.
8.4. The Customer indemnifies the Company for any loss that the Company may incur as a result of the incorrect payment or non-payment of any GST and associated fees or penalties.
8.5. If the Company becomes liable for any penalties or interest as a result of a late payment of GST, where that late payment is as a direct result of a failure of the Customer to comply with this clause 8, the Customer must pay to the Company an additional amount on demand equal to the amount of those penalties and interest.
9. ACCEPTANCE AND DELIVERY
9.1. All Goods will be delivered to the Customer by the Company to the address stipulated in the Order unless agreed otherwise in writing by both parties.
9.2. The Company will have the sole and absolute discretion as to the choice of carrier and method of carriage of the Goods, unless otherwise agreed by the Company in writing.
9.3. Any time quoted for delivery is an estimate only. The Customer must accept the Goods even in the event of a delay.
9.4. A failure of the Company to deliver Goods will not entitle the Customer to cancel the balance of an Order.
9.5. Subject to clause 12, the Company is not liable to the Customer for any loss or damage (including consequential loss or damages) arising from late delivery of the Goods.
9.6. If the Company determines that it is or may be unable to deliver the Goods within a reasonable time (or at all) the Order may be cancelled by the Company in its sole and absolute discretion by giving the Customer 30 days’ notice in writing of the Company’s intention of doing so. Subject to clause 12, if an Order is cancelled, the Customer will have no claim against the Company for any loss or damage (including consequential loss or damage) arising from the cancellation.
9.7. Subject to clause 12, the Customer must indemnify the Company against any claim, loss or damage suffered by the Company, or as a result of the Company becoming liable to any third party (directly or indirectly,) as a result of the Company or its employees, contractors or agents entering any premises for the purpose of delivering the Goods.
9.8. Expected delivery times for Goods ordered the Customer are within 1 week from the date of any Order.
10. PPSA
10.1. The Customer acknowledges that these Terms create a Security interest in the Secured Property and the proceeds of sale of the Secured Property for the purposes of the PPSA.
10.2. The Customer consents to the Company effecting a registration on the PPSR (as the Company deems appropriate) in relation to the Security Interest arising under or in connection with these Terms and the Customer agrees to provide all assistance required by the Company to facilitate this.
10.3. The Customer acknowledges and agrees that in relation to the part of the Secured Property that is inventory, the Customer will not allow any Security Interest to arise in respect of that Secured Property unless the Company has perfected the Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.
10.4. If Chapter 4 of the PPSA applies to the enforcement of the Security Interest arising under or in connection with these Terms, the Customer agrees:
a) to the extent that s115(1) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: s95 to the extent that it requires the Company to give a notice to the Customer, s96, s121(4), s125 (obligation to dispose of or retain collateral), s130 to the extent that it requires the Secured Party to give notice to the Customer, ss132(3)(d), ss132(4), s142 and s143 (reinstatement of security agreement); and
b) to the extent that s115(7) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: s127, s129(2) and (3), s132, s134(2), s135, s136(3), (4) and (5) and s137.
10.5. If the Customer makes payments to the Company at any time whether in connection with these Terms or otherwise, the Company may in its absolute discretion apply that payment in any manner it sees fit.
10.6. The Customer agrees to immediately notify the Company of any changes to its name or address.
10.7. The Customer agrees to do anything that the Company requests the Customer to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed):
a) to provide more effective security over the Secured Property;
b) to register in respect of a Security Interest constituted by these Terms at any time;
c) to enable the Company to exercise its rights in connection with the Secured Property; and
d) to show the Company whether the Customer has complied with these Terms.
10.8. The Customer will pay on demand any losses arising from, and any costs and expenses incurred in connection with, any action taken by the Company under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under s275 of the PPSA.
10.9. Any notices or documents which are required or permitted to be given to the Company for the purposes of the PPSA must be given in accordance with the PPSA.
10.10. The Customer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
11. DISCLOSURES
11.1. Both parties agree not to disclose information of the kind mentioned in s275(1) of the PPSA, except in the circumstances required by s275(7)(b) to (e) of the PPSA. The Customer agrees that it will only authorize the disclosure of information under s275(7) (c) or request information under s275(7) (d), if the Company approves it.
11.2. This clause 11 will not prevent any disclosure by the Company that the Company believes is necessary to comply with its other obligations under the PPSA or under any other applicable law.
11.3. To the extent that it is not inconsistent with clauses 11.1 and 11.2 above constituting a "confidentiality agreement" for the purposes of s275(6)(a) of the PPSA, the Customer agrees that the Company may disclose information of the kind mentioned in s275(1) of the PPSA to the extent that the Company is not doing so in response to a request by an "interested person" (as defined in s275(9) of the PPSA) pursuant to s275(1) of the PPSA.
12. IMPLIED TERMS
12.1. The Company acknowledges that where the supply of Goods are “consumer” supplies, under applicable State, Territory and Commonwealth law(s) (including, without limitation, the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act), certain statutory express and implied guarantees and warranties (including, without limitation, the statutory guarantees under the Competition and Consumer Act will be implied into these Terms (Non- Excluded Guarantees).
12.2. The Company acknowledges that nothing in these Terms purports to modify or exclude the Non-Excluded Guarantees.
12.3. Except as expressly set out in these Terms or in respect of the Non-Excluded Guarantees, the Company makes no warranties or other representations under any contract with the Customer or these Terms. The Customer’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13. WARRANTIES AND GUARANTEES
13.1. Subject to clause 14, unless otherwise agreed in writing by the Company, the Company warrants to repair or replace (at the Company’s option) all Goods and their components manufactured by it which the Company, in its sole and absolute discretion, determines are defective in materials or workmanship under normal use and service, up to the expiration of the relevant item’s Warranty Period, provided that i) all Goods must undergo inspection at least once a year, and ii) the Customer must sign-up for three years of communication servicing with the Company at AUD $99 (ex GST) per year for PowerSave PFC units and AUD $24 (ex GST) per year for SolarIQ units, payable upfront or on an annual basis. All other costs, including cartage and installation, must be paid by the Customer.
13.2. While the Goods are in custody of the Company for investigation or repair they will be at the risk of the Customer and the Company or its employees or agents will not be liable for any damage to the Goods.
13.3. Parts and labour for repair or replacement pursuant to clause 13.1will be provided by the Company during normal working hours at a place of business of the Company and the Company will have no liability for the cost of transportation of the Goods to such a place of business.
13.4. All rejected parts or defective parts will be the property of the Company to dispose of as it sees fit.
13.5. Goods that are classified as “consumer” goods come with guarantees that cannot be excluded under the ACL. If a Good is classified as a “consumer good”, the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. The warranty in clause 13.1 against defects is given in addition to other rights and remedies of the ACL.
13.6. Any deviation in treatment, handling, installation and/or use from the installation or operations manuals will void this warranty. This includes events such as operating the unit in conditions that exceed regulatory guidelines, e.g., harmonics or by not maintaining the communications link and data transfer to Edge Electrons.
13.7. The provider of warranties given under these Terms is given by the Company. Email: enquiries@edgeelectrons.com.
14. LIMITATION OF LIABILITY AND INDEMNITY
14.1. Other than as expressly provided for in clause 13 and subject to the limitations in clause 12, the Company, its employees, contractors and/or agents will not be liable for any loss or damage (including consequential loss or damage, which includes without limitation, loss of profits and loss of revenue) of any kind whatsoever, even if due to the negligence of the Company, its employees and/or agents.
14.2. Subject to clause 12 and so far as the law permits, the liability of the Company for a failure to comply with the Non-Excluded Guarantees, will be limited to, other than in the case of a major fault, at the Company’s option, to the replacement of Goods, the repair of the Goods, the supply of equivalent Goods or the cost of replacing or repairing the Goods or of acquiring equivalent Goods.
14.3. Subject to clause 13, the Customer acknowledges that it has not relied on any representation, description, or statement by the Company in relation to the Goods, or the skill or judgement of the Company, its agents, contractors or employees, as to if the Goods are fit for a particular purpose.
14.4. The Customer acknowledges it has relied solely on its own inspection, skill and judgement in purchasing the Goods.
15. CUSTOMER CONVENANTS
15.1. The Customer acknowledges and agrees that any particulars, such as dimensions and illustrations, relating to the Goods are approximate only and any deviations from these will not result in the Customer being able to make any claim against the Company for any loss or damage (including consequential loss or damage) suffered by the Customer which arises from such deviation.
15.2. The Company accepts no responsibility for errors in dimensions, quantities or specifications in relation to Goods delivered to the Customer by the Company where the error arises from an Order that the Customer has placed with the Company.
15.3. The Customer agrees to provide a “Harmonic Environment” to ensure the proper performance of the Goods, and the Company accepts no responsibility if the Goods perform below standard in a low harmonic environment provided by the Customer. Harmonic Environment means site voltage harmonics’ vTHD operates within the relevant network regulated levels. If the site voltage harmonics’ vTHD exceed the relevant network regulated levels, warranty provided by the Company shall expire.
16. TITLE AND RISK
16.1. Risk in Goods will pass to the Customer upon Delivery of the Goods by the Company (unless otherwise agreed in writing).
16.2. Title in the Goods will not pass to the Customer until the Customer has paid the Company all amounts owing (all cheques or negotiable instruments have been paid) and the Customer has met all other obligations due by the Customer to the Company in respect of these Terms and all other contracts with the Customer and the Company, and until the above obligations have been satisfied, the Customer acknowledges and agrees that the Customer:
a) holds the Goods as bailee only;
b) must store the Goods supplied in a way that it is clear that they are the Company’s property; and
c) irrevocably authorizes the Company to enter any premises where the Goods are kept and, if necessary, to use the Customer’s name and to act on the Customer’s behalf to recover the Goods.
17. PRIVACY
17.1. The Company will collect information in relation to the Customer, for the purpose of providing the Goods to the Customer in accordance with these Terms, and in accordance with the laws relating to the collection and disclosure of personal information under the Privacy Act 1998 (Cth) as amended from time to time.
18. INTELLECTUAL PROPERTY
18.1. The Customer acknowledges that all rights in respect of patents, copyrights, design rights, trade marks or other industrial or intellectual property rights connected with the Goods shall not pass to the Customer.
18.2. The Customer shall indemnify the Company against any and all liabilities, claims and costs incurred by or made against the Company as a direct or indirect result of carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of the Customer involving any infringement or alleged infringement of any rights of any third party.
18.3. All Intellectual Property Rights, including but not limited to copyright, patents, design rights, trademarks, software and licenses in, or related to, Goods supplied by the Company remain the property of the Company and shall not be available in any form to third parties, nor re-used by the Customer, unless agreed to in writing by the Company.
18.4. Any software supplied by the Company may be used by the Customer only in respect of the Goods specified.
18.5. Use of Goods which contain, or are to be used with, standard or custom software or firmware may be subject to the Customer’s acceptance of additional terms and conditions in separate Company or third-party license agreements (Third Party License Agreements). Where there is a conflict between any term of a Third Party License Agreement and these Terms of Sale, the Third Party License Agreement will prevail to the extent of the inconsistency. In the absence of a Third Party License Agreement, the Purchaser is granted a non-exclusive, non-transferable and royalty free license to use the purchased software or firmware only in object code form and solely in conjunction with the Goods, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware.
18.6. The Purchaser must not alter, remove, or in any way tamper with, or otherwise do anything adverse to, any Intellectual Property Rights (including but not limited to trade marks), whether registered or unregistered, or numbers of the Company or its suppliers attached to or placed on the Goods.
18.7. Unless otherwise declared in writing at time of sale, the Goods sold by must be resold in the original packages by the Customer.
18.8. The Purchaser acknowledges that there is no transfer of title, interest or ownership to any Intellectual Property Rights in the Intellectual Property Rights of the Company and its related companies.
18.9. Where Goods sold are sold under a trade mark (whether registered or unregistered), the Customer acknowledges and accepts that the Company (and its related companies) will strictly enforce any rights (including the right to damages) in respect of any infringement of the Company’s Intellectual Property Rights arising in any manner whatsoever (including substitution, passing off or other improper use). The Customer must not itself use any logo, business name or intellectual property of the Company.
19. CONFIDENTIAL INFORMATION
19.1. The Customer must:
a) keep the Confidential Information private and secret;
b) not access, use or reproduce Confidential Information for any purpose other than in connection with the Goods supplied to the Customer by the Company nor assist or permit any other person to do so;
c) not disclose Confidential Information except as permitted under these Terms of Sale; and
d) take all steps reasonably necessary to safeguard the Confidential Information from unauthorized access, use or disclosure.
19.2. The Customer may disclose Confidential Information only with the prior written consent of the Company.
19.3. All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by the Company or otherwise contained in Company’s publications including price lists, brochures, catalogues, electronic media and other advertising material of the Company are approximate only and are intended to be by way of general description of the Goods and shall not form part of the Terms of Sale between the Company and the Customer unless otherwise specified by the Company in writing, in which case, they shall be subject to recognized tolerances and rejection limits. The Company does not agree to comply with any specifications and drawings referred to in any order unless such specifications and drawings have been produced to the Company prior to the delivery of Goods and have been agreed to in writing and signed by a duly authorized representative of the Company.
19.4. Following agreement to purchase, if the Customer requests the Company to provide certified drawings, the Company may, at its discretion, provide such certified drawings at the Company’s reasonable expense.
19.5. Any drawings, studies or other documents submitted by the Company to the Customer remain the property of the Company and constitute the confidential information, Intellectual Property Rights and copyright of the Company. The Customer must not use them for any purpose other than in accordance with these Terms of Sale and must not transmit, disclose or make them available to any third parties without the prior written consent of the Company.
20. CONFIDENTIAL INFORMATION
20.1. The parties will use their best endeavours and attempt in good faith to promptly resolve any dispute arising in connection with these Terms of Sale. Any dispute not resolved within 30 days of a party notifying the other party in writing of the dispute may then be submitted to a court of competent jurisdiction in Victoria Australia in accordance with the Terms of Sale. These procedures are the exclusive procedures for the resolution of all such disputes between the parties under these Terms of Sale.
21. GENERAL
21.1. Any right that the Company may have under these Terms is in addition to, and does not replace or limit, any other right that the Company may have.
21.2. Any provision of these Terms which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make these Terms enforceable, unless this would materially change the intended effect of these Terms.
21.3. The Customer must not assign its benefits or novate its obligations under these Terms without the prior written consent of the Company in writing. The Company may assign its rights and novate its obligations under these Terms to another person without the consent of the Customer.
21.4. The Company is entitled to vary these Terms at any time by giving the Customer 14 day’s prior written notice.
21.5. These Terms constitute the entire agreement between the Company and the Customer and supersede all prior representations, contracts, statements and understandings, whether verbal or in writing. All other terms and conditions are excluded to the fullest extent permitted by law including any terms and conditions which the Customer may from time to time seek to impose.
21.6. A right of the Company may only be waived in writing, signed by the Company. No other conduct of the Company (including a failure to exercise, or delay in exercising, the right) operates as a waiver or prevents the exercise of the right. A waiver of a right by the Company on one or more occasions does not operate as a waiver of that right if it arises again. The exercise of a right by the Company does not prevent any further exercise of that right or of any other right.
21.7. These Terms will be governed by and construed in accordance with the laws in force in Victoria, Australia. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in Victoria, Australia, and any court that may hear appeals from any of those courts, for any proceedings in connection with these Terms, and waives any right it might have to claim that those courts are an inconvenient forum.