Terms and Conditions of Sale – ScaleFibre Australia Pty Ltd

Version 2.0 · Last updated 19 August 2026

This document establishes the legal framework for the supply of goods by ScaleFibre Australia Pty Ltd ABN 49 686 931 939 (the Supplier) to the Purchaser. The Supplier supplies goods only, and does not perform construction work or provide installation or other on-site services.

These Standard Terms do not exclude, restrict or modify the consumer guarantees that apply under the Australian Consumer Law. The Supplier’s warranty against defects, the statement required by the Australian Consumer Law, and how to make a claim, are set out in full in clause 11A — Warranty Against Defects.

1. Definitions and Interpretation

1.1 Definitions

In these Standard Terms, the following definitions apply unless the context requires otherwise:

• Account Payment means payment in full and in cleared funds of all amounts owing by the Purchaser to the Supplier on any account, whether or not then due for payment.
• ACL means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
• Agreement means the legally binding contract between the Supplier and the Purchaser for the supply of goods, comprised of the Standard Terms, any Special Conditions, any Confirmation Email, any Continuing Supply Arrangement, and any Other Documents; and, where the context requires, including in clauses 14(a), 19(b), 19(c), 21(a), 21(l), 22(a), 22(b), 22(d), 22(e) and 22(f), all such contracts between the parties together with any Continuing Supply Arrangement.
• Amendment Demand has the meaning given to it in the PPSA.
• Confirmation Email means the written communication issued by the Supplier to the Purchaser formally accepting an order, whether or not it specifies delivery lead-times or any other particular.
• Consequential Loss means any loss of income, revenue, profit, financial opportunity, investment return, business or business opportunity, loss of contract, loss of goodwill, loss of data, loss of production or loss of use, downtime costs, diminution in value (other than the difference between the value of the Goods as warranted and the value of the Goods as supplied), any liability of a party to a third party (other than (A) liability of a kind indemnified by the Supplier under clause 14(h), (B) any amount payable under an indemnity in the Agreement in respect of a claim by a third party, and (C) any liability that cannot lawfully be excluded, restricted or modified, including under section 274 of the ACL), Removal Costs to the extent they exceed the Removal Costs Sub-Cap, and any indirect, special, punitive or exemplary loss or damage. Removal Costs up to the Removal Costs Sub-Cap are not Consequential Loss.
• Consumer has the meaning given to it in section 3 of the ACL.
• Continuing Supply Arrangement means any credit facility, standing order, supply agreement, framework arrangement or open account established between the Supplier and the Purchaser, whether or not any order is outstanding under it.
• Datasheet means, for the relevant Goods, the first of the following that exists, and no other document: (i) the product datasheet issued by the Supplier for those Goods and current at the date of the Confirmation Email; (ii) the datasheet or specification identified in the Confirmation Email; or (iii) the Manufacturer’s published specification for those Goods current at the date of the Confirmation Email. A document marked or described by the Supplier as preliminary, indicative, draft, or for reference only is disregarded for the purposes of paragraph (i), and where the only document the Supplier has issued for those Goods is such a document, paragraphs (ii) and (iii) apply in that order.
• Event of Default means any of the following: (a) the Purchaser fails to pay any amount when due and does not remedy that failure within ten (10) business days of written notice, other than an amount disputed by the Purchaser in good faith under clause 10(e); (b) an Insolvency Event; (c) a breach of clause 4(f) that is not capable of remedy, or that is capable of remedy and is not remedied within five (5) business days of written notice; (d) a Restructure in respect of which the Purchaser has not complied with clause 2(g) or 2(h) and that is not capable of remedy, or that is capable of remedy and is not remedied within five (5) business days of written notice; (e) any other material breach of the Agreement by the Purchaser that is not capable of remedy, or that is capable of remedy and is not remedied within ten (10) business days of written notice from the Supplier; (f) the occurrence of any event or circumstance entitling the Supplier to terminate the Agreement or any order under clause 19(b) or clause 19(c); or (g) a failure to comply with clause 3(i) that is not remedied within five (5) business days of written notice. Where more than one paragraph of this definition applies to the same event or circumstance, the paragraph specifically directed to that event or circumstance prevails, and for this purpose paragraph (f) is taken to be specifically directed to any event or circumstance entitling the Supplier to terminate under clause 19(b) or clause 19(c), and the notice and cure requirements of the prevailing paragraph apply to the exclusion of those in any other paragraph; this sentence applies only where each relevant paragraph is capable of applying to that event or circumstance, and does not limit any right of termination under clause 19(b) or 19(c). No event or circumstance constitutes an Event of Default under any paragraph of this definition to the extent it consists of a failure to pay an amount disputed by the Purchaser in good faith under clause 10(e), for so long as it remains so disputed and the Purchaser has paid the undisputed portion in accordance with clause 10(a); this sentence does not affect the validity of any notice given or right exercised by the Supplier before the dispute was notified, and where a dispute is resolved in the Supplier’s favour the amount is treated as having been due and payable from the original due date and the cure period in paragraph (a) runs from the date of resolution.
• Financing Change Statement has the meaning given to it in the PPSA.
• Full Payment means, in relation to any Goods, payment in full and in cleared funds of the purchase price of those Goods, including GST and any delivery, duty and freight charges invoiced with them.
• Goods means any goods supplied by the Supplier.
• GST has the meaning given to it in the GST Act.
• GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
• Insolvency Event means the Purchaser becomes insolvent or bankrupt, has a controller, receiver, administrator or liquidator appointed, enters into any arrangement or composition with its creditors, ceases or threatens to cease to carry on business, or is subject to any analogous event.
• Manufacturer means the third party that manufactured the relevant Goods.
• NCNR Goods means Goods identified as non-cancellable and non-returnable in the Confirmation Email, where that identification is effective under this definition. An identification is effective only where the designation was stated in the Supplier’s quotation or in the Purchaser’s purchase order, or where the Purchaser does not reject it by written notice given within two (2) business days of the Confirmation Email. Where the Purchaser rejects the designation within that period, the Goods are not NCNR Goods and the order lapses in respect of those Goods without charge to either party.
• Other Documents means any additional document that the Supplier and the Purchaser have expressly agreed in writing forms part of the contract between them for the supply of goods.
• PMSI means a purchase money security interest as defined in the PPSA.
• PPSA means the Personal Property Securities Act 2009 (Cth) and its associated regulations.
• PPS Register means the register established under section 147 of the PPSA.
• Purchaser means the person, firm, or company to whom the Goods are supplied by the Supplier.
• Related Body Corporate has the meaning given to it in the Corporations Act 2001 (Cth).
• Removal Costs means the reasonable and properly incurred costs of removing, de-installing, disconnecting, retrieving and returning Goods that are defective, that do not conform to the Agreement, or that are the subject of a recall or corrective action under clause 15(h), of supplying and installing replacement Goods, of re-terminating, re-splicing, re-testing and re-commissioning them, and of making good any land, building, structure, pit, pole, duct or conduit disturbed in doing so.
• Removal Costs Sub-Cap means, in respect of any Goods, an amount equal to the price paid or payable by the Purchaser for those Goods.
• RMA means a Return Material Authorisation issued by the Supplier for the purpose of authorising the return of Goods.
• Security Interest has the meaning given to it in the PPSA.
• Special Conditions means any terms and conditions expressly agreed in writing between the parties that are intended to modify or supplement these Standard Terms.
• Standard Terms means the terms and conditions set out in this document.
• Stock Items means Goods identified as stock items in the Confirmation Email, being catalogue Goods of a kind ordinarily held by the Supplier in stock and, at the time of the return request or cancellation, in unmodified, saleable condition, excluding cut cable, custom assemblies, made-to-order Goods, and NCNR Goods. Where the Confirmation Email does not identify Goods as Stock Items or as NCNR Goods, the Goods are Stock Items if they are catalogue Goods of a kind ordinarily held by the Supplier in stock, are not cut cable, custom assemblies or made-to-order Goods, and are, at the time of the return request or cancellation, in unmodified, saleable condition and in their original packaging.
• Supplier means ScaleFibre Australia Pty Ltd ABN 49 686 931 939.
• Supplier Warranties means the express warranties and remedies given by the Supplier in clause 8(g) (conformity with the Datasheet), clause 11(a) (title), clause 11(c) (Goods manufactured, assembled or terminated by the Supplier), and clause 11(f) (backstop remedy), and Supplier Warranty means any one of them.
• Tax Invoice has the meaning given to it in the GST Act.
• Warranty Period means the period of twelve (12) months from the date of delivery of the Goods to the Purchaser.

1.2 Interpretation

• (a) A reference to the Supplier or the Purchaser includes their respective executors, administrators, successors, and permitted assigns.
• (b) The documents forming the Agreement are intended to be mutually explanatory. In the event of an inconsistency, the following order of precedence applies, from highest to lowest: (i) any Special Conditions; (ii) any Other Documents; (iii) any Continuing Supply Arrangement; (iv) the Confirmation Email, but only as to the commercial particulars it is issued to record, being price, quantity, currency, delivery lead-time or estimated delivery date, any Special Conditions reference, Incoterms basis and named place, any DDP election, any Datasheet or specification reference, any NCNR designation, any Stock Item designation, any commitment date, any host-equipment coding or keying particular referred to in clause 16(g), and the notice address; and (v) these Standard Terms. The Confirmation Email does not vary these Standard Terms in any other respect, and any provision of a Confirmation Email purporting to do so has effect only if separately agreed in writing by the Purchaser.
• (c) Headings are for convenience only and do not affect the interpretation of the clauses.
• (d) A reference to “writing” includes email and any other form of written electronic communication.
• (e) “Including” and “includes” are not words of limitation.
• (f) A reference to a statute includes any statutory modification or re-enactment of it and any regulation made under it.
• (g) A reference to “business day” means a day that is not a Saturday, Sunday or public holiday in Brisbane, Queensland, and a reference to “business hours” means 9.00am to 5.00pm on a business day.
• (h) The plural form of a defined term has the corresponding meaning.

2. Contractual Framework and Quotations

(a) To the extent permitted by law, the legal relationship between the Supplier and the Purchaser is governed exclusively by: (i) these Standard Terms; (ii) any Special Conditions expressly agreed in writing; (iii) the specific commercial details in the Supplier’s Confirmation Email; (iv) any Continuing Supply Arrangement; and (v) any Other Documents. The documents in this clause are listed in no particular order; precedence between them is determined by clause 1.2(b).

(b) Purchaser’s terms. Any terms proposed by the Purchaser in a purchase order, portal, or otherwise that are different from or additional to these Standard Terms are expressly rejected and do not apply unless agreed in writing by the Supplier. Commencement of performance by the Supplier does not constitute acceptance of the Purchaser’s terms.

(c) Quotations are for informational purposes and do not constitute a binding offer to sell. A quotation may be revoked or amended at any time before the Supplier issues a Confirmation Email. Unless stated otherwise, quotations expire after thirty (30) days and are subject to the Supplier obtaining any necessary licence or approval. If actual order quantities differ from those quoted, the Supplier may adjust pricing and delivery timelines accordingly.

(d) Except in the case of a Continuing Supply Arrangement, a binding agreement is formed only upon issuance of a Confirmation Email by the Supplier. A Continuing Supply Arrangement takes effect on its written establishment by the Supplier and is binding whether or not any order is outstanding under it. If the Purchaser does not receive a Confirmation Email, the Purchaser is responsible for requesting it.

(e) Any purchase order issued by the Purchaser constitutes an offer to contract on the framework in clause 2(a).

(f) These documents constitute the entire agreement between the parties and supersede all prior negotiations, representations, and communications. Nothing in this clause excludes, restricts or modifies any liability of a party for fraud or for conduct that contravenes the ACL.

(g) The Purchaser will notify the Supplier within ten (10) business days of any change in its structure or management, being any sale or disposition of any material part of its business, any change of control, any change in trustee, any change in the partners of a partnership, or any change in the holders of twenty-five percent (25%) or more of its voting shares (a Restructure). This clause does not apply to an entity listed on a prescribed financial market, or to any dealing in the quoted securities of such an entity.

(h) The Purchaser will cause any new entity created by a Restructure to be bound by these Standard Terms, will continue to be bound by these Standard Terms despite the Restructure, and will indemnify the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) it suffers as a result of a breach of these Standard Terms by that entity.

(i) Acceptance and incorporation. These Standard Terms are published on the Supplier’s website and are incorporated into every quotation, Confirmation Email and order. By placing an order, accepting a Confirmation Email, or taking delivery of any Goods, the Purchaser acknowledges that it has been given a reasonable opportunity to read these Standard Terms, accepts and adopts them, and agrees that this acknowledgement is an act done with the intention of adopting and accepting these Standard Terms as a security agreement for the purposes of section 20 of the PPSA. The Confirmation Email will identify the version of these Standard Terms governing the order, being the version determined under clause 20(b). That identification records, and does not determine or vary, the governing version, and if a Confirmation Email identifies a version other than the version determined under clause 20(b), clause 20(b) prevails.

3. Credit, Guarantees and Security for Payment

(a) A quotation does not constitute an offer of credit. All credit applications are subject to the Supplier’s internal approval process. The Supplier may vary or withdraw any credit facility or credit limit on reasonable grounds by written notice to the Purchaser, and clause 19(a) does not apply to the variation or withdrawal of a credit facility or credit limit. The variation or withdrawal does not of itself affect any order already accepted, and may not be made by reason of an amount disputed by the Purchaser in good faith under clause 10(e). The variation or withdrawal of a credit facility or credit limit does not of itself constitute an Event of Default by the Purchaser, and outstanding balances remain payable in accordance with clause 10.

(b) The Supplier may require the directors, officers, or any Related Body Corporate of a corporate Purchaser to provide a guarantee and indemnity in the form required by the Supplier as a condition of supply or of the grant or continuation of credit.

(c) The Purchaser must provide current financial statements and authorise credit enquiries within five (5) business days of the Supplier’s written request. The Purchaser must also notify the Supplier in writing within five (5) business days of becoming aware of any of the following: (i) an event of default, or an event that with the giving of notice or the lapse of time would be an event of default, under any facility under which the Purchaser or any of its Related Bodies Corporate borrows money or is provided with financial accommodation, or the acceleration, cancellation, suspension or non-renewal of any such facility; (ii) the entry of a judgment or the making of an order for the payment of money against the Purchaser for an amount exceeding AUD 100,000, or for amounts exceeding AUD 100,000 in aggregate in any twelve (12) month period, that is not satisfied, set aside or stayed within ten (10) business days; (iii) service on the Purchaser of a statutory demand under section 459E of the Corporations Act 2001 (Cth), of a bankruptcy notice, or of an application for the winding up of the Purchaser or for the appointment of an administrator, receiver, controller or liquidator; (iv) the Purchaser entering into or applying for a payment arrangement, deferral or remission with the Australian Taxation Office in respect of a tax debt, the receipt by any director of the Purchaser of a director penalty notice, or the disclosure or proposed disclosure of a business tax debt of the Purchaser to a credit reporting bureau under section 355-72 of Schedule 1 to the Taxation Administration Act 1953 (Cth); (v) the taking of any step to enforce, or the giving of any notice of intention to enforce, a Security Interest over any asset of the Purchaser by another secured party, including any notice given under section 123, 130 or 132 of the PPSA; or (vi) the Purchaser ceasing, or resolving to cease, to carry on all or a material part of its business. A notification under this clause is not of itself an Event of Default, but the Supplier may act on it under clauses 3(a), 3(e) and 3(i).

(d) Where any Related Body Corporate of the Purchaser purchases under the same account, the Purchaser must procure that entity’s compliance with the Agreement and indemnifies the Supplier against all amounts owing in respect of those purchases and all loss the Supplier suffers as a result of non-payment. This clause creates a primary obligation of the Purchaser, is not a guarantee of the obligations of another person, and is not conditional on the Supplier first proceeding against that entity. The Supplier may in addition require a separate guarantee and indemnity under clause 3(b). The Purchaser must not permit any Related Body Corporate to order or take delivery of Goods under the Purchaser’s account unless that entity has first executed and delivered to the Supplier a deed of accession in the form required by the Supplier, under which it agrees to be bound by these Standard Terms as if it were the Purchaser, grants the Supplier the lien and Security Interests in clauses 3(f), 4(a) and 4(b) over the Goods supplied to it and over the other collateral described in those clauses, and gives the Grantor Details and the warranty and indemnity in clause 4(e) in respect of itself. In addition, and whether or not such a deed has been executed, the Purchaser: (i) warrants that it is authorised by each such Related Body Corporate to grant, and as agent for that entity grants, the lien and Security Interests in clauses 3(f), 4(a) and 4(b) over the Goods supplied to that entity and over that entity’s other collateral described in those clauses, on the same terms as if that entity were the Purchaser, and clauses 4(c) to 4(l) apply to those interests as if references in them to the Purchaser were references to that entity; (ii) must, before any Goods are supplied to that entity, give the Supplier that entity’s Grantor Details, and warrants their accuracy and gives the indemnity in clause 4(e) in respect of them; and (iii) indemnifies the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from that entity not being bound by clause 3(f), 4(a) or 4(b), or from the Supplier not obtaining in respect of Goods supplied to that entity a perfected Security Interest of the priority contemplated by clause 4.

(e) The Supplier may suspend delivery of undelivered Goods, or require payment in advance or other reasonable assurance of performance, where any amount (other than an amount disputed by the Purchaser in good faith under clause 10(e)) is overdue or the Supplier reasonably considers itself insecure. The Supplier will notify the Purchaser in writing of any such suspension.

(f) Lien and power of sale. The Purchaser grants the Supplier a lien and Security Interest over all goods of the Purchaser, including materials and equipment but excluding any motor vehicle, watercraft or aircraft, that come into the Supplier’s actual possession in connection with the supply of Goods, other than Goods returned under clause 7(c), 11(h) or 12, securing all amounts owing by the Purchaser to the Supplier on any account that are due and payable, until those amounts are paid in full. The Purchaser warrants that it owns, or is authorised by the owner to grant this lien over, all such property, and indemnifies the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from any claim by a third party in respect of property over which the Purchaser has granted this lien. The parties acknowledge that the Security Interest granted under this clause is perfected by the Supplier’s possession of the property under section 21(2)(b) of the PPSA. The Purchaser also consents to the Supplier registering that Security Interest on the PPS Register in the collateral class “Other Goods” and, where applicable, in any serial-numbered collateral class appropriate to the particular property, and the Supplier will not, in reliance on this clause, register a financing statement describing the collateral as all present and after-acquired property. Clauses 4(d) (other than its reference to section 62 of the PPSA), 4(j) and 4(k) apply to that Security Interest as if it were granted under clause 4, except that nothing in clause 4(k) affects the Supplier’s obligations under this clause to give notice, to account for any surplus, or to credit the Purchaser with the value realised. If any amount that is due and payable remains unpaid for thirty (30) days after the Supplier gives written notice of its intention to exercise this power, the Supplier may sell that property and apply the net proceeds against the amounts owing, accounting to the Purchaser for any surplus. That notice must identify the property the Supplier intends to sell and state the amount required to redeem it. At any time before the Supplier sells the property or enters into a contract to sell it, the Purchaser, or any other person entitled under section 142 of the PPSA, may redeem the property by paying the amounts then due and payable together with the Supplier’s reasonable costs of enforcement, and nothing in clause 4(k) excludes or limits that right. Nothing in clause 4(k) relieves the Supplier of its obligation under section 130 of the PPSA to give notice of a proposed disposal to any person other than the Purchaser who is entitled to receive it, including any other secured party with a Security Interest in the property perfected by registration, and the Supplier must not sell the property until that notice has been given and any period required by the PPSA has expired. The Purchaser must identify to the Supplier in writing, at or before the time the property comes into the Supplier’s possession, any property that the Purchaser does not own, together with the name of its owner. The Supplier may not exercise the power of sale in respect of property so identified, or in respect of property that the Supplier knows or has reason to believe is not owned by the Purchaser, without the written consent of the owner. The Supplier may not exercise the power of sale in respect of an amount disputed by the Purchaser in good faith under clause 10(e) while it remains so disputed, must sell only so much of the property as is reasonably necessary to satisfy the amount then due and payable together with its reasonable costs of sale, and must credit the Purchaser with the value realised.

(g) Additional security. The Supplier may require additional security as a condition of granting or continuing credit. Where the Purchaser grants such security by a separate written instrument, the Purchaser consents to the Supplier registering or lodging any instrument or notice necessary to record and protect that security, and will execute any document and do all things reasonably required for that purpose. Where, and only where, that separate written instrument grants the Supplier an interest in land, the Purchaser also consents to the Supplier lodging a caveat over that land to protect that interest. The parties acknowledge that neither these Standard Terms nor any other document forming the Agreement charges, or is intended to charge, any interest in land, and that they do not give the Supplier a caveatable interest in any land. Nothing in this clause obliges the Purchaser to grant security over real property except under a separate instrument expressly agreed in writing.

(h) Privacy. The Purchaser warrants that it is authorised to disclose to the Supplier the personal information it provides about its directors, officers and guarantors. The Supplier collects that information in order to assess creditworthiness, manage the account and recover amounts owing, and may disclose it for those purposes to credit reporting bodies, credit insurers, debt collection agencies and its professional advisers. If the information is not provided, the Supplier may decline to grant or continue credit. The Supplier handles that information in accordance with the Privacy Act 1988 (Cth), the Australian Privacy Principles and the Supplier’s privacy policy, which is available on the Supplier’s website and sets out how an individual may access or correct their information or make a complaint. The Supplier may disclose that information to recipients located overseas, and the Supplier’s privacy policy identifies the countries in which those recipients are located. The Purchaser will bring this clause to the attention of each individual concerned at or before the time it provides that individual’s information to the Supplier.

(i) Credit limit. Where the Supplier has notified the Purchaser in writing of a credit limit, the Purchaser must ensure that the aggregate of all amounts owing by it to the Supplier on any account, whether or not then due for payment, together with the price of Goods the subject of orders accepted but not yet invoiced, does not at any time exceed that limit. The Supplier is not obliged to accept any order, or to deliver any Goods, where doing so would cause the limit to be exceeded, and any failure or delay in acceptance or delivery attributable to that is not a breach of the Agreement. If the limit is exceeded, the Purchaser must within five (5) business days of written notice either reduce the amount owing to below the limit or provide prepayment or other security acceptable to the Supplier, acting reasonably, failing which the amount by which the limit is exceeded becomes immediately due and payable. The acceptance of an order or the delivery of Goods that causes the limit to be exceeded is not a waiver of this clause, does not vary the limit, and does not affect the Purchaser’s liability for the amount owing. However, where the limit is exceeded only because the Supplier accepted an order or made a delivery that caused it to be exceeded, the Purchaser is not in breach of this clause and no Event of Default arises under paragraph (g) of the definition of Event of Default in respect of that excess, and the amount owing remains payable in accordance with clause 10. A credit limit is the maximum exposure the Supplier is prepared to carry and is not a commitment to supply.

4. Security Interest (PPSA)

(a) Grant, PMSI and general Security Interest. The Purchaser grants to the Supplier: (i) a Security Interest in each item of Goods supplied by the Supplier to the Purchaser, whether now or in the future, and in all accessions to, processed or commingled goods derived from, and proceeds of that item (including proceeds of resale, insurance proceeds, and accounts arising from its sale or other disposition), securing the unpaid purchase price of that item, which the parties acknowledge and agree is a PMSI for the purposes of section 14 of the PPSA. For the avoidance of doubt, no item of Goods secures the purchase price of any other item under this paragraph (i); and (ii) a separate Security Interest in the same collateral securing all other amounts owing by the Purchaser to the Supplier on any account, which the parties acknowledge is not a PMSI. The Supplier will register a separate financing statement in respect of each. Nothing in paragraph (ii) affects the character of the Security Interest granted under paragraph (i). Each interest granted under this clause is a Security Interest, and references in the Agreement to the Security Interest are references to each of them and, where the context permits, to the Security Interest granted under clause 3(f).

(b) Title. Title in the Goods does not pass to the Purchaser until Full Payment for those Goods. Until Account Payment the Purchaser holds the Goods subject to the Security Interest granted under clause 4(a)(ii), which is not a PMSI. Nothing in this clause causes title to pass earlier. The parties acknowledge that this retention of title constitutes a Security Interest for the purposes of the PPSA, and that for the purposes of section 14 of the PPSA it is a PMSI only to the extent that it secures the unpaid purchase price of those Goods. To the extent it secures any other amount it is not a PMSI, and ranks and is enforceable as the Security Interest granted under clause 4(a)(ii), without affecting the retention of title itself or the character of the Security Interest granted under clause 4(a)(i). The Supplier’s rights are governed by the PPSA.

(c) Attachment and enforceability. The Security Interest attaches to the Goods in accordance with section 19 of the PPSA, at the earliest time permitted by that section, and attachment is not deferred by any other agreement. These Standard Terms constitute a security agreement for the purposes of section 20 of the PPSA, and the Purchaser acknowledges that the Supplier may perfect its Security Interest by registration before attachment occurs.

(d) Registration. (i) The Purchaser consents to the Supplier registering each Security Interest on the PPS Register in the collateral class or classes reasonably appropriate to the collateral, describing the collateral as commercial property, and agrees that the Supplier may register before the Purchaser obtains possession of the Goods in order to obtain the priority available to a PMSI in inventory under section 62 of the PPSA. (ii) The Supplier will register a financing statement in respect of the Security Interests granted under clauses 4(a)(i) and 4(a)(ii), stating in the case of clause 4(a)(i) that the interest is a PMSI, on or before the establishment of any Continuing Supply Arrangement and, in any event, before the Purchaser or any person at the Purchaser’s request obtains possession of any Goods, and will maintain that registration while any amount may become owing. The Supplier is not obliged to deliver Goods on credit unless and until that registration is effective, and any failure or delay in delivery attributable to that requirement is not a breach of the Agreement. (iii) The Purchaser acknowledges that the security agreement constituted by these Standard Terms comes into force, for the purposes of section 588FL of the Corporations Act 2001 (Cth), on the earlier of the establishment of a Continuing Supply Arrangement and the first Confirmation Email. (iv) The Purchaser must not make an Amendment Demand, and must not register or permit the registration of a Financing Change Statement, in respect of a registration that correctly records a Security Interest granted under the Agreement, without the Supplier’s prior written consent. If the Purchaser gives an Amendment Demand, it must at the same time give the Supplier written notice of it and of the grounds relied on, and must not take any step under section 178 of the PPSA before the end of five (5) business days after that notice.

(e) Further assurances, grantor details and information. The Purchaser will promptly do anything the Supplier reasonably requires, including obtaining consents, signing and producing documents, and supplying information, for the purposes of ensuring the Security Interest is enforceable, perfected, and has the priority required by the Supplier, and of enabling the Supplier to exercise its rights. Before the first supply of Goods, and thereafter on the Supplier’s written request, the Purchaser must give the Supplier in writing: (A) its exact legal name as it appears in its certificate of registration issued by the Australian Securities and Investments Commission or, where the Purchaser is an individual, as it appears on the Purchaser’s current Australian driver licence; (B) its ACN and its ABN and, in the case of a registrable Australian body or foreign company, its ARBN; (C) where the Purchaser enters the Agreement as trustee of a trust, whether or not notified under clause 21(j), the full name of the trust, the ABN of the trust (or confirmation that the trust has no ABN), and the date of the trust deed; and (D) where the Purchaser is a partnership, the full name and ABN of the partnership and the full name and ACN or date of birth of each partner (together, the Grantor Details). The Purchaser warrants that the Grantor Details are complete and accurate when given and at the time of each supply, acknowledges that the Supplier relies on them in determining the grantor identifier against which to register a financing statement and the collateral class in which to register it, and indemnifies the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from any inaccuracy, incompleteness or unnotified change in them, including any loss of priority, any registration being ineffective or seriously misleading for the purposes of section 164 of the PPSA, and the vesting of any Security Interest under section 267 or 267A of the PPSA or section 588FL of the Corporations Act 2001 (Cth). The Purchaser must notify the Supplier in writing at least ten (10) business days before any change to any of the Grantor Details or to its address that is within its control, and in any event within two (2) business days after becoming aware of any such change, including its becoming or ceasing to be trustee of a trust, any change of trustee of a trust of which it is trustee, and the allocation, change or cancellation of the ABN of any such trust. Before the first supply of Goods on credit, and thereafter on the Supplier’s written request, the Purchaser must disclose in writing every Security Interest registered against it or otherwise existing over its inventory or its accounts, and must notify the Supplier in writing within five (5) business days of granting any further Security Interest over that collateral. The Purchaser represents that the Goods and any other collateral are not and will not be used predominantly for personal, domestic or household purposes, and that it acquires them in the course or furtherance of carrying on an enterprise to which an ABN has been allocated.

(f) Dealings with the Goods. Until Full Payment for the relevant Goods the Purchaser must: (i) keep the Goods safe, insured, and free from deterioration or loss; (ii) store the Goods in a way that allows them to be identified as the Supplier’s Goods, and provide to the Supplier within two (2) business days of written request a record of the location, quantity and drum, reel or serial identification of all Goods for which Full Payment has not been made; (iii) sell the Goods only in the ordinary course of its business, and a sale by way of bulk disposal of inventory otherwise than to a customer of the Purchaser, or a sale not at arm’s length, is not a sale in the ordinary course of business; (iv) not grant or permit any Security Interest in the Goods ranking ahead of the Supplier’s Security Interest, other than one existing and disclosed to the Supplier in writing before delivery; and (v) not affix the Goods to any land or building, or permit them to be so affixed, before Full Payment without the Supplier’s prior written consent, and where consent is given, do all things the Supplier reasonably requires to preserve the Supplier’s interest in the Goods, including procuring from the owner or occupier of the land a written acknowledgement of the Supplier’s rights in them; (vi) not sell, factor, discount or otherwise assign, or grant any Security Interest in, any account arising from the sale of the Goods, without the Supplier’s prior written consent; and (vii) notify the Supplier in writing within two (2) business days of receiving any notice given under section 64 of the PPSA in respect of the Supplier’s Security Interest.

(g) Proceeds. Where the Purchaser sells or otherwise disposes of the Goods before Full Payment for those Goods, the Purchaser holds so much of the proceeds as equals the amount then owing to the Supplier in respect of those Goods on trust for the Supplier, must account to the Supplier for those proceeds on demand, and must not assert any set-off or counterclaim against them except as permitted by clause 10(b). The Purchaser must, on the Supplier’s written request, pay those proceeds into a separate account nominated by the Supplier and hold them in that account pending payment to the Supplier, and must maintain records sufficient to identify the proceeds of each item of Goods. Failure to comply with this clause does not of itself defeat the trust, but the Purchaser acknowledges that the trust extends only to proceeds that can be identified or traced. This clause operates in addition to, and does not limit, the Supplier’s Security Interest in proceeds under clause 4(a) and the PPSA, and to the extent this clause creates a Security Interest, clauses 4(d) and 4(k) apply to it.

(h) Accessions, commingled goods and fixtures. Where the Goods are installed in, affixed to, processed with or commingled with other goods, the Supplier’s Security Interest continues in accordance with Parts 3.3 and 3.4 of the PPSA. The Purchaser acknowledges that where Goods become fixtures the PPSA may cease to apply to them, and that the Supplier’s rights in respect of those Goods are then governed by clause 4(f)(v) and the general law. Where the Supplier consents under clause 4(f)(v), the Purchaser must first procure from each owner and mortgagee of the relevant land a written acknowledgement, in a form approved by the Supplier, that the Goods remain the Supplier’s property until Full Payment for those Goods, that they do not become part of the land, and that the Supplier may enter and remove them on reasonable notice, making good any damage.

(i) Access and recovery. If an Event of Default has occurred and is continuing and Account Payment has not been made, the Supplier may recover the Goods and, for that purpose, the Purchaser grants the Supplier and its agents a licence to enter any premises occupied or controlled by the Purchaser at which the Goods are located, on reasonable notice and during business hours except where the PPSA permits otherwise. Where the Goods are located at premises not occupied or controlled by the Purchaser, the Purchaser will use its best endeavours to procure the occupier’s consent to that entry. The Supplier will not use force against any person, will cause no more damage than is reasonably necessary, and will exercise its rights in accordance with Chapter 4 of the PPSA. The Supplier may recover only so much of the Goods as is reasonably necessary to satisfy the amount then due and payable, together with its reasonable costs of recovery, and must credit the Purchaser with the value realised on any Goods recovered. The Purchaser indemnifies the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from an entry made with the Purchaser’s authority under this clause. Nothing in clause 4(k) affects the Supplier’s obligations under this clause to give notice, to recover only so much of the Goods as is reasonably necessary, or to credit the Purchaser with the value realised. Nothing in this clause prevents the Supplier, before an Event of Default has occurred, from taking any step reasonably necessary to prevent the removal, concealment, disposal or deterioration of Goods in which it holds a Security Interest, including seeking urgent injunctive relief.

(j) Certificate. A document signed by an officer of the Supplier identifying the collateral and certifying the amount owing is, in the absence of manifest error, evidence of those matters.

(k) Contracting out. To the extent permitted by sections 115 and 157(3) of the PPSA, and despite any other provision of the Agreement, in relation to any Security Interest arising in the Supplier’s favour: (i) the Supplier need not comply with sections 121(4), 125, 132(3)(d), 132(4) and 135 of the PPSA, and need not comply with sections 95 and 118 of the PPSA to the extent those sections require or allow the Supplier to give a notice to the Purchaser, but the Supplier will comply with section 130 of the PPSA; (ii) section 143 of the PPSA is excluded, and section 142 of the PPSA is not excluded; (iii) the Supplier need not give any notice required under the PPSA, including notice of a verification statement or a Financing Change Statement, unless the notice is required by a provision that cannot be excluded; and (iv) the Purchaser waives, and this constitutes written waiver for the purposes of section 157(3)(b) of the PPSA of, its right to receive notice of a verification statement in relation to any registration in which the collateral is described as commercial property. This clause 4(k) applies only to the extent permitted by sections 115 and 157(3) of the PPSA, and does not apply, and the Supplier will comply with the PPSA, in relation to any collateral that is in fact used predominantly for personal, domestic or household purposes, whether or not the Purchaser has given the representation in clause 4(e). Nothing in this clause 4(k) relieves the Supplier of any obligation to give a notice to a person other than the Purchaser, including any notice required by section 130 of the PPSA to another secured party or to any other person entitled to receive it. For the purposes of section 275(6)(a) of the PPSA, the Supplier (as secured party) and the Purchaser (as debtor) agree that neither the Supplier nor the Purchaser will disclose information of the kind mentioned in section 275(1) of the PPSA. This confidentiality agreement is made contemporaneously with, and not after, each security agreement to which it relates, and is incorporated into every document that constitutes a security agreement between the parties. The Purchaser must not give an authorisation under section 275(7)(c) of the PPSA without the Supplier’s prior written consent. The parties acknowledge that this agreement does not apply in the circumstances set out in section 275(7) of the PPSA.

(l) Security of payment legislation. Nothing in the Agreement limits or excludes any right of the Supplier under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) or any corresponding legislation in another jurisdiction, and any provision of the Agreement that purports to exclude, modify or restrict the operation of that legislation is of no effect to that extent.

5. Title, Risk and Delivery Terms

(a) Delivery terms. Unless otherwise agreed in writing: (i) domestic supplies within Australia are made on the Incoterms 2020 basis stated in the Confirmation Email or, where none is stated, FCA the Supplier’s premises where the Confirmation Email states that the Supplier is to load the Goods, and EXW the Supplier’s premises in every other case; and (ii) international supplies are made FCA the Supplier’s nominated place (Incoterms 2020), or on such other Incoterms 2020 basis as is specified in the Confirmation Email.

(b) Risk. Subject to clause 5(d), risk in the Goods passes to the Purchaser: (i) where the Supplier loads the Goods, on completion of loading onto the carrier or the Purchaser’s vehicle; (ii) where the Purchaser or its carrier loads the Goods, when the Goods are placed at the Purchaser’s disposal at the Supplier’s premises; and (iii) where the Purchaser fails to take delivery, in accordance with clause 6(b).

(c) Title. Title in the Goods passes on Full Payment for those Goods, subject to clause 4.

(d) Delivered and duty-paid supplies. Where the Confirmation Email specifies a delivered price on a DDP (Incoterms 2020) or equivalent basis: (i) the Supplier is the importer of record and is responsible for customs clearance and payment of duties and import charges for the named destination; (ii) risk in the Goods passes to the Purchaser on arrival of the Goods at the named place, ready for unloading; (iii) title passes on Full Payment for those Goods, subject to clause 4; and (iv) clause 9(d) does not apply, and no duty or import charge will be added to the invoice after acceptance except under clause 9(e).

(e) Purchaser’s insurance. The Purchaser must keep the Goods insured against loss or damage for their full replacement value until Full Payment for those Goods, and will note the Supplier’s interest on that insurance while title is retained and provide a certificate of currency on request.

(f) Supplier’s insurance. The Supplier will maintain, with insurers of recognised standing, public and products liability insurance with a limit of indemnity of not less than AUD 20,000,000 for any one occurrence and, in respect of products liability, not less than AUD 20,000,000 in the aggregate in any one period of insurance, in each case determined as at the inception or renewal of the relevant policy and to the extent such insurance is available to the Supplier in the Australian market on commercially reasonable terms. Erosion or exhaustion of an aggregate limit by the payment of, or the establishment of reserves for, claims during a period of insurance is not of itself a breach of this clause, provided that the Supplier uses reasonable endeavours to reinstate the limit where reinstatement is available on commercially reasonable terms. The Supplier will provide a certificate of currency on written request. Any requirement to note the Purchaser as an interested party, or to carry higher limits, applies only where agreed in the Special Conditions and at the Purchaser’s cost. The Supplier maintains this insurance for its own benefit. This clause confers no right, interest or benefit on the Purchaser in respect of any policy or its proceeds, is not a warranty that any loss is or will be covered by insurance, and the existence, terms, limits, availability, response or proceeds of any insurance maintained by the Supplier must not be taken into account in construing or applying, and do not affect the operation of, clause 13 or 14. Nothing in this clause applies to clause 12 or to the operation of the Australian Consumer Law.

(g) Goods located outside Australia. (i) Until Full Payment for the relevant Goods, the Purchaser must not remove, or permit the removal of, those Goods from Australia or, in the case of an international supply under clause 5(a)(ii), from the country of the delivery destination stated in the Confirmation Email, without the Supplier’s prior written consent, and must give the Supplier not less than ten (10) business days’ written notice of any proposed removal, stating the destination country, the intended location, and the name and address of any person who will hold the Goods. (ii) The Purchaser acknowledges that, although the PPSA may apply to a Security Interest granted by an Australian entity, the existence, perfection, priority and enforceability of the Supplier’s Security Interest and retention of title as against third parties in respect of Goods located outside Australia may be determined by the law of the place where the Goods are located, and that registration on the PPS Register may not protect the Supplier’s interest in that place. (iii) Where Goods are or are to be located outside Australia before Full Payment, the Purchaser must at its own cost promptly do everything necessary, and everything the Supplier reasonably requires, to create, perfect, register, record, maintain and enable the enforcement of security equivalent to that granted under clauses 4(a) and 4(b) under the law of that place, including executing any local security document, making any filing, registration or notification, obtaining any consent, and procuring from any person who holds or will hold the Goods a written acknowledgement of the Supplier’s rights in them in a form approved by the Supplier. (iv) If the Purchaser fails to comply with paragraph (iii) within five (5) business days of written notice, the Purchaser irrevocably appoints the Supplier as its attorney to do in the Purchaser’s name anything the Purchaser was required to do under paragraph (iii), and ratifies anything the Supplier lawfully does within the scope of this paragraph. The Supplier may exercise this power only while the failure continues, and must give the Purchaser written notice of anything it does under this paragraph within five (5) business days of doing so. (v) The Purchaser indemnifies the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from a removal of Goods in breach of paragraph (i) or a failure to comply with paragraph (iii), including any loss of title, priority or security. (vi) Paragraphs (ii) to (v) apply to an international supply under clause 5(a)(ii) from the time of delivery, whether or not consent under paragraph (i) is required.

6. Delivery, Storage and Acceptance

(a) Any delivery time or date stated is an estimate only. The Supplier is not liable for any Consequential Loss resulting from delay in delivery, and its liability for any other loss resulting from delay in delivery is limited in accordance with clause 14(a). The Supplier will notify the Purchaser of any material change to an estimated delivery date. The estimated delivery date is the date stated in the Confirmation Email or, where the Confirmation Email states a lead-time rather than a date, the date falling at the end of that lead-time calculated from the date of the Confirmation Email. Where delivery is delayed by more than forty-five (45) days beyond the estimated delivery date, the Purchaser may cancel the undelivered portion of the affected order without charge by written notice given before the Supplier dispatches the affected Goods, and the Supplier will refund any amount paid for the cancelled Goods. The right in this sentence is not exercisable in respect of Goods that have been dispatched, and the Supplier will notify the Purchaser of dispatch of the affected Goods. This right does not apply to cut cable, custom or made-to-order Goods, or NCNR Goods once cutting or production has commenced or the Supplier has made an irrevocable commitment in respect of them. Nor does it apply where the delay is caused by an event that is a force majeure event for the purposes of clause 18(a), which is dealt with under clause 18. Time is not of the essence in respect of any obligation of the Supplier to deliver the Goods, and no failure to deliver by an estimated delivery date, or any other delay in delivery, is a repudiation of the Agreement or entitles the Purchaser to terminate the Agreement or any order, other than as expressly provided in this clause 6(a) or in clause 18(c) or 19(b). This sentence does not apply to any obligation of a party to pay money. Nothing in this clause excludes, restricts or modifies any right or remedy of the Purchaser under clause 12 or under the Australian Consumer Law.

(b) Failure to take delivery. If the Purchaser fails to take delivery when the Goods are made available, the Supplier may store the Goods at the Purchaser’s risk and expense. Storage charges accrue from fifteen (15) days after notification that the Goods are available, at the Supplier’s reasonable storage cost, the rate for which will be notified to the Purchaser before charges commence. Risk passes to the Purchaser on the date the Goods were first made available.

(c) Inspection — apparent defects. The Purchaser must inspect all Goods promptly on their arrival at the place to which they are consigned. Written notice of shortages, incorrect supply, transit damage, or defects apparent on reasonable inspection must be given within fourteen (14) days after that arrival and, in any event, within ninety (90) days after delivery, whichever period expires first. Failure to give notice within this period constitutes acceptance of the Goods as to those matters, except where the shortage or defect was not reasonably discoverable within that period, in which case clause 6(d) applies. Nothing in this clause excludes, restricts or modifies any right or remedy of the Purchaser under clause 12 or under the Australian Consumer Law, including the rejection periods under section 262 of the ACL.

(d) Latent defects. For shortages and defects not reasonably discoverable within the period in clause 6(c), the Purchaser must give written notice within thirty (30) days of discovery and in any event within the Warranty Period. Nothing in this clause excludes, restricts or modifies any right or remedy of the Purchaser under clause 12 or under the Australian Consumer Law.

(e) The Supplier may make partial deliveries and invoice each separately.

(f) Not used.

7. Returns, Cancellation and Change Orders

(a) Returns. A request to return Stock Items must be made within thirty (30) days of the invoice date. Returns are subject to a restocking fee equal to the greater of twenty-five percent (25%) of the invoice value or any restocking fee charged to the Supplier by the Manufacturer, up to a maximum of forty percent (40%) of the invoice value, plus all freight costs. The Supplier is under no obligation to accept a return of Stock Items and does so as an accommodation to the Purchaser. The restocking fee reflects the Supplier’s handling, inspection and re-packaging costs and the reduction in value of Goods returned to stock. The Supplier will advise the applicable restocking fee before issuing the RMA.

(b) Exclusions. No return is permitted for cut cable (being cable cut from a full drum or reel length), custom-cut cable, made-to-order cable or assemblies, customised products, or NCNR Goods. This clause applies only to returns for the Purchaser’s convenience and does not limit any right of the Purchaser under clause 6, 8(g), 11 or 12 or under the Australian Consumer Law. A designation of Goods as NCNR Goods is effective only as provided in the definition of NCNR Goods in clause 1.1.

(c) RMA. No return will be accepted without a valid RMA issued by the Supplier. A request for an RMA must be made in writing, and the Supplier will issue the RMA, or decline the request by written notice, within five (5) business days of receiving the request. The completed RMA must be returned within five (5) business days of issue, and the Goods must be returned within fourteen (14) calendar days of the date the RMA is issued, in original condition and packaging, freight prepaid. If either of those periods is not met the RMA lapses, and the Supplier may reissue it at its discretion. The Supplier must not decline a request for an RMA in respect of Goods returned under clause 7(d) or clause 11(h), or in the exercise of a right under clause 12 or under the Australian Consumer Law, and the periods in this clause do not apply to a return of that kind.

(d) Incorrect supply. Where the Supplier has supplied in error, the Purchaser must give written notice in accordance with clause 6(c). Subject to the standard RMA process and inspection, the Supplier will issue a credit for the invoiced amount without restocking fee and will bear the freight cost of the return.

(e) Cancellation. Except as provided in clauses 6(a), 7(h), 9(e), 9(f), 18(c), 19(b) and 19(c), an order may not be cancelled, deferred, or varied without the Supplier’s written consent. Where consent is given, paragraphs (i), (ii) and (iii) apply separately to each line item of the order, and a reference in those paragraphs to an order is a reference to the line item concerned: (i) a line item for Stock Items cancelled before dispatch is subject to a processing charge of ten percent (10%) of the price of that line item; (ii) a line item for cut cable, custom or made-to-order Goods, or NCNR Goods, cannot be cancelled once cutting or production has commenced or the Supplier has made an irrevocable commitment in respect of them; and (iii) in every case the Purchaser must pay the Supplier’s costs reasonably incurred and irrevocable commitments reasonably made in respect of the cancelled line item, including raw materials and work in progress, reduced by any amount the Supplier realises, or could by reasonable endeavours realise, on the sale or other use of them, except that where paragraph (i) applies to a line item and paragraph (ii) does not apply to that line item, the charge under paragraph (i) is the Supplier’s sole entitlement in respect of the cancellation of that line item. Where the Purchaser pays an amount under paragraph (iii) in respect of Goods, raw materials or work in progress that are complete or partly complete, the Supplier must at the Purchaser’s cost and direction deliver them to the Purchaser, and title in them passes to the Purchaser on payment in full and in cleared funds of that amount.

(f) Reels and drums. Where a reel or drum deposit is charged, it is invoiced separately and credited on return of the reel or drum in good and reusable condition, undamaged and with legible identification, within twelve (12) months of dispatch. Items identified as non-returnable carry no deposit and no credit.

(g) Commitment date. Where an order includes cut cable, custom or made-to-order Goods, or NCNR Goods, the Confirmation Email will state the date on or after which the Supplier expects to commence cutting or production, or to make an irrevocable commitment, in respect of those Goods. The exclusions in clauses 6(a) and 7(e)(ii) do not apply before that date, whether or not cutting or production has in fact commenced or an irrevocable commitment has in fact been made, and do not apply at all where the Confirmation Email does not state such a date. For the purposes of clauses 9(e), 9(f) and 18(c), cutting or production is taken not to have commenced, and no irrevocable commitment is taken to have been made, before the date stated in the Confirmation Email; and where the Confirmation Email states no such date, no adjustment may be made under clause 9(f) to the price of cut cable, custom or made-to-order Goods, or NCNR Goods. The Supplier will confirm in writing on request whether cutting or production has commenced or an irrevocable commitment has been made.

(h) Discontinued Goods and substitution. Where a Manufacturer discontinues, supersedes or materially modifies Goods after the Confirmation Email, the Supplier may supply functionally equivalent Goods of equal or better specification on written notice, or cancel the undelivered portion of the affected order without charge and refund any amount prepaid in respect of it. The Purchaser may reject a substitution by written notice given within five (5) business days of the Supplier’s notice, in which case the undelivered portion of the affected order is cancelled without charge and the Supplier will refund any amount prepaid in respect of it. Nothing in this clause limits the Supplier’s election under clause 9(e).

(i) Australian Consumer Law. Nothing in this clause 7 excludes, restricts or modifies any right or remedy of the Purchaser under clause 6, 8(g), 11 or 12 or under the Australian Consumer Law. Clauses 7(a), 7(b) and 7(e) do not apply to Goods that are defective, not of acceptable quality or incorrectly supplied; clauses 7(c) and 7(d) continue to apply to the return of Goods of that kind, and the Supplier must not decline a request for an RMA for a return of that kind.

(j) End-of-life and product change notices. Where the Supplier receives from a Manufacturer a notice of end of life, end of sale, discontinuation, last-time buy or product change affecting Goods that the Supplier has supplied to the Purchaser within the preceding twelve (12) months or that are the subject of an accepted order, the Supplier will give the Purchaser a copy of that notice, or a written summary of its substance, within ten (10) business days of receiving it. The Supplier gives no representation or warranty as to the continued availability of any Goods, is under no obligation to place, accept or fulfil any last-time-buy order or to hold or reserve any stock, and is not liable for any failure by a Manufacturer to give a notice or for the content, accuracy or completeness of any notice passed on under this clause. A notice or summary given under this clause is confidential information of the Supplier for the purposes of clause 17. Nothing in this clause limits clause 7(h) or clause 9(e).

8. Technical Data, Tolerances and Specifications

(a) Length tolerance. The Purchaser acknowledges that cable quantities are subject to manufacturing length tolerances. The delivered and invoiced quantity may be no less than the ordered quantity and no more than the ordered quantity plus two percent (2%), being a tolerance of minus zero percent to plus two percent (-0% to +2%), and the Supplier invoices on the actual quantity supplied. Where a reel would exceed this tolerance, the Supplier will request a revised purchase order rather than invoice the excess.

(b) The Supplier may, at its sole discretion, waive the charge for any additional length within tolerance.

(c) Disclaimer of advice. Subject to clause 12, the Purchaser confirms it is the sole decision-maker in the transaction and has not relied on any technical advice or representation from the Supplier that is not expressly recorded in the Special Conditions, the Confirmation Email or a Datasheet, including reliance on nominal test results which may not incorporate measurement uncertainty. The Supplier makes no representation regarding the effectiveness of any product feature in reducing, resisting, or eliminating damage caused by termites, rodents, other pests, or environmental conditions. Nothing in this clause excludes, restricts or modifies any liability of a party for fraud or for conduct that contravenes the ACL, or any right or remedy of the Purchaser under clause 12 or under the Australian Consumer Law.

(d) Selection and application. The Purchaser is solely responsible for the selection, application, installation, and suitability of the Goods for its intended purpose, and will indemnify the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from misapplication or from installation not in accordance with the Manufacturer’s published specifications, applicable Australian Standards, and good engineering practice, except to the extent caused by the Supplier’s negligence or breach of the Agreement.

(e) High-risk use. The Goods are not designed for use in applications where failure could lead to death, personal injury, or severe physical or environmental damage, including nuclear facilities, aircraft navigation, and life support systems. The Purchaser will not use the Goods in any such application and will indemnify the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from any such use.

(f) Illustrations, drawings, and preliminary or indicative specifications supplied by the Supplier are drafts and approximations for reference only and must not be relied upon for accuracy. All rights in them remain the property of the Supplier or the relevant Manufacturer, may be recalled at any time, and must be treated as confidential in accordance with clause 17. Nothing in this clause excludes, restricts or modifies any liability of a party for fraud, or any right or remedy of the Purchaser under clause 12 or under the Australian Consumer Law.

(g) Datasheets. Clause 8(f) does not apply to a Datasheet. The Supplier warrants that the Goods will conform in all material respects to the applicable Datasheet, subject to clause 8(a) and to any tolerance, test method, or measurement condition stated in the Datasheet or in the Manufacturer’s published specification for the Goods current at the date of the Confirmation Email. Nominal or typical values stated in a Datasheet are not guaranteed minima. The Supplier’s sole obligation and the Purchaser’s sole remedy for breach of this clause is, at the Supplier’s option, repair, replacement, or refund of the price paid for the affected Goods. The warranty in this clause applies for the Warranty Period. Notice must be given in accordance with clause 6(c) or 6(d), and this clause is subject to clauses 12 and 14. Clause 13(b) preserves the warranty in this clause.

9. Pricing, GST, Duties and Adjustments

(a) The Purchaser must pay the price set out in the Confirmation Email.

(b) GST. Unless otherwise stated, all prices and other amounts payable under the Agreement are exclusive of GST. Where the Supplier makes a taxable supply under the Agreement, the amount payable for that supply (the GST Exclusive Price) is increased by, and the Purchaser must also pay, an amount equal to the GST Exclusive Price multiplied by the prevailing rate of GST. The Purchaser is not required to pay that amount until the Supplier has provided a valid Tax Invoice for the supply, but the liability to pay it arises when the liability to pay the GST Exclusive Price arises.

(c) GST adjustments and reimbursements. If an adjustment event arises in respect of a supply under the Agreement, including an error or omission in the calculation of GST, the Supplier will issue an adjustment note and: (i) if the corrected GST amount is less than the amount previously attributed, the Supplier must refund the difference to the Purchaser; or (ii) if the corrected GST amount is more than the amount previously attributed, the Purchaser must pay the difference to the Supplier. Where a party is required to reimburse or indemnify the other for a cost or expense, the amount reimbursed is reduced by any input tax credit to which the other party or its representative member is entitled. Where a party is required under the Agreement to indemnify or reimburse the other for a cost, expense or loss, and that payment is consideration for a taxable supply, the payer must also pay an amount equal to the GST payable on that supply.

(d) Duties and import charges. Prices are exclusive of all customs duties, tariffs, anti-dumping and countervailing duties, import fees, brokerage charges, and similar levies, all of which are the Purchaser’s responsibility and will be added to the invoice unless the Confirmation Email specifies a delivered price.

(e) Adjustment for change in cost. If the Supplier’s cost of performing the Agreement increases as a result of the coming into force, after the date of the quotation or, where no quotation was issued for the affected Goods, after the date of the Confirmation Email, of any law, regulation, tariff, duty, or other governmental measure having the force of law in any jurisdiction, the price may be adjusted to cover the additional cost and by no more than the additional cost. The adjustment includes no margin, and the Supplier will provide evidence of the increase on request. This applies to orders already accepted but not yet delivered. The Supplier will give written notice of any such adjustment, and the Purchaser may cancel the undelivered portion of the affected order without charge by written notice given within ten (10) business days of that notice. Where the Supplier gives notice of an adjustment under this clause in respect of cut cable, custom or made-to-order Goods, or NCNR Goods on which cutting or production has commenced or in respect of which the Supplier has made an irrevocable commitment, the Supplier must elect, and must state its election in that notice, either: (i) to absorb the additional cost in respect of those Goods, in which case no adjustment applies to those Goods and the right of cancellation in this clause does not apply to them; or (ii) to permit the Purchaser to cancel the undelivered portion of the affected order without charge.

(f) Currency. Prices for imported Goods are based on exchange rates prevailing at the quote date. The Supplier may adjust final pricing to reflect exchange rate movement between the quote date and the date of import or, where the Goods are not imported by the Supplier, the date of dispatch. This clause applies only to orders accepted but not yet delivered, and notice of an adjustment must be given before dispatch of the affected Goods. The Supplier will provide evidence of the movement on request. Where that movement is favourable to the Purchaser, the Supplier will reduce the price accordingly. No adjustment is made under this clause to the price of cut cable, custom or made-to-order Goods, or NCNR Goods once cutting or production has commenced or the Supplier has made an irrevocable commitment in respect of them. The Supplier will give written notice of any such adjustment, and the Purchaser may cancel the undelivered portion of the affected order without charge by written notice given within ten (10) business days of that notice.

(g) Unless stated otherwise, quoted prices are for supply from the Supplier’s premises and exclude transport, offloading, insurance, duties, taxes, and charges for non-standard packaging, drum or reel sizes, or testing certificates.

10. Payment

(a) Terms. Payment is due in cleared funds before dispatch, or where the Supplier has extended a credit facility, within thirty (30) days from the end of the month of the invoice date. All payments are in Australian Dollars unless the Confirmation Email specifies otherwise.

(b) Set-off. Neither party may set off, deduct or withhold any amount payable to the other except in respect of an amount that the other party has admitted in writing is owing, that has been awarded by a court or tribunal, that has been determined by an adjudicator under security of payment legislation, or that the Purchaser has disputed in good faith under clause 10(e) and that has not been resolved in the Supplier’s favour. Nothing in this clause limits clause 10(e).

(c) Interest. Interest accrues on overdue amounts at the cash rate target published by the Reserve Bank of Australia and in force from time to time, plus eight percent (8%) per annum, calculated daily from the due date until payment in full. Interest does not accrue on any amount disputed by the Purchaser in good faith under clause 10(e) for the period during which it remains so disputed. Where a dispute is resolved in the Supplier’s favour, interest accrues on the amount found to be owing from the original due date.

(d) Application of payments. The Supplier may apply any payment received against any amount owing by the Purchaser, including interest, administration, and collection costs, in any order it determines. Despite the preceding sentence, where the Supplier claims or enforces the Security Interest granted under clause 4(a)(i) or the retention of title in clause 4(b), payments received are taken to have been applied first against the purchase price of Goods in the order in which those Goods were invoiced, oldest first, and the Supplier will maintain and, on request, produce records identifying the unpaid purchase price of each item of Goods.

(e) Disputed invoices. The Purchaser must notify the Supplier in writing of any disputed invoice within ten (10) business days of receipt of the invoice, or within the applicable period under clause 6(c) or 6(d) where the dispute concerns a shortage or defect, whichever is later. The Purchaser must nonetheless pay the undisputed portion of the invoice in accordance with clause 10(a), and the Supplier will issue a credit note or refund for any disputed amount where the dispute in respect of that amount is resolved in the Purchaser’s favour.

(f) Costs of recovery. The Purchaser must reimburse the Supplier for all reasonable costs of collection, including legal costs, collection agency fees, and any dishonour fee charged by the Supplier’s bank together with a reasonable administration charge. No dishonour fee is payable where the relevant invoice has been disputed by the Purchaser in good faith under clause 10(e).

11. Warranty

(a) Title. The Supplier warrants that: (i) at the time of delivery it has the right to sell the Goods, and the Goods are free of any Security Interest or encumbrance other than those granted under clauses 3(f) and 4 and any Security Interest disclosed to the Purchaser in writing before delivery; (ii) on Full Payment for the Goods, the Purchaser obtains good title to them free of all Security Interests and encumbrances created by or through the Supplier; and (iii) where the Purchaser sells the Goods in the ordinary course of its business as permitted by clause 4(f)(iii) before Full Payment, that sale is made with the Supplier’s authority and the Goods are sold free of the Supplier’s Security Interest in them, and the Supplier will do all things reasonably necessary to give effect to this paragraph. Nothing in paragraph (iii) affects the continuation of the Supplier’s Security Interest in the proceeds of that sale under clauses 4(a) and 4(g), the Purchaser’s obligations under clauses 4(f) and 4(g), or the Supplier’s rights in respect of a sale that is not in the ordinary course of the Purchaser’s business.

(b) Manufacturer warranties. The Supplier does not itself manufacture the Goods, except as stated in clause 11(c). This does not affect the Supplier’s status as a manufacturer of the Goods for the purposes of the ACL, which is addressed in clause 12(e). The Supplier assigns and passes through to the Purchaser, to the extent assignable, all warranties provided to the Supplier by the Manufacturer, and authorises the Purchaser to make and settle warranty claims directly with the Manufacturer. The Supplier will provide the substance of the applicable Manufacturer’s warranty terms on request, which it may provide by way of a statement of those terms issued by the Supplier or in redacted form, provided that the Supplier will not redact the duration, scope, exclusions, conditions or remedies of the warranty, and may redact only pricing and other commercial terms not material to a warranty claim. Where a Manufacturer’s warranty is not assignable, the Supplier will, at the Purchaser’s written request and cost, pursue the warranty claim against the Manufacturer on the Purchaser’s behalf and account to the Purchaser for the proceeds.

(c) Limited Supplier warranty. For Goods manufactured, assembled, or terminated by the Supplier, the Supplier warrants that those Goods will be free from material defects in materials and workmanship for the Warranty Period, provided notice is given in accordance with clause 6(c) or 6(d). The Supplier’s sole obligation and the Purchaser’s sole remedy is, at the Supplier’s option, repair, replacement, or refund of the price paid. This clause is subject to clauses 12 and 14. Clause 13(b) preserves the warranty in this clause.

(d) During the Warranty Period the Supplier may inspect the Goods at the Purchaser’s location or require their return to a designated location.

(e) Exclusions. No warranty under clause 11(c) or 11(f) covers defects caused by improper storage or handling, normal wear and tear, pests, deliberate or accidental damage, modification, or installation or use not in accordance with the Manufacturer’s published specifications, applicable Australian Standards, and good engineering practice.

(f) Backstop remedy. Where Goods not covered by clause 11(c) fail to conform to the applicable Manufacturer’s warranty, and the Manufacturer has not provided a remedy within ninety (90) days of the Claim Start Date, the Supplier will, at its option, repair or replace the Goods or refund the price paid for them. The Claim Start Date is: (i) where the Supplier is required to pursue the claim under clause 11(b), the date on which the Supplier submits the claim to the Manufacturer; and (ii) in every other case, the later of the date on which the Purchaser properly submits the claim to the Manufacturer and the date on which the Purchaser gives the Supplier written notice of that submission, identifying the Goods, the failure claimed and the date of submission. The Purchaser must give that notice within five (5) business days of submitting the claim, and must on the Supplier’s written request provide copies of its correspondence with the Manufacturer relating to the claim. A failure to give that notice within five (5) business days does not of itself disentitle the Purchaser to the remedy in this clause, but the ninety (90) day period does not begin until the notice is given. This clause applies only in respect of Goods for which the Warranty Period had not expired at the date the claim was submitted to the Manufacturer. Where the Supplier is reasonably satisfied, on the information available to it, that the Manufacturer is actively evaluating the claim, and the Supplier notifies the Purchaser of that fact before the end of the ninety (90) day period, that period is extended by up to a further sixty (60) days. This clause applies only where the Purchaser has given notice in accordance with clause 6(c) or 6(d). This is the Purchaser’s sole remedy in respect of such Goods and is subject to clauses 12 and 14. Clause 13(b) preserves the warranty in this clause.

(g) Not used.

(h) Conditions applying to remedies. Where the Supplier repairs, replaces or refunds under clause 8(g), 11(c), 11(f) or 16(d): (i) the Purchaser must, at the Supplier’s request and cost, return the affected Goods to the Supplier or make them available for collection; (ii) title in Goods replaced or refunded passes to the Supplier on replacement or refund or, where title has not passed to the Purchaser, remains with the Supplier; and (iii) to the extent permitted by law, and excluding any right conferred by Part 5-2 or Part 5-4 of the ACL, the Purchaser assigns to the Supplier, and will do all things necessary to give effect to that assignment, all rights it has against the Manufacturer in respect of the affected Goods to the extent of the amount refunded or the value of the repair or replacement provided. Where the Supplier provides a remedy under clause 12(b), paragraphs (i) and (ii) apply to the extent permitted by law, and paragraph (iii) does not apply.

(i) Not used.

11A. Warranty Against Defects — Statement Required by the Australian Consumer Law

This clause 11A is the Supplier’s warranty against defects for the purposes of regulation 90 of the Competition and Consumer Regulations 2010 (Cth). It applies to every supply of Goods by the Supplier and forms part of the Agreement. The Supplier supplies goods only and does not supply services.

The following statement is included as required by the Australian Consumer Law:

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are 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 warranties in clauses 8(g) and 11(c) apply for twelve (12) months from the date of delivery of the Goods. The remedy in clause 11(f) is available in respect of any claim submitted to the Manufacturer before the end of that twelve (12) month period, and may extend beyond it in accordance with that clause. The warranties in clauses 11(c) and 11(f) do not cover the matters excluded by clause 11(e), and clause 11(h) sets out conditions that apply when we repair, replace or refund. To claim under clause 8(g), 11(c) or 11(f), give written notice in accordance with clause 6(c) or 6(d). If you claim under clause 11(f) and you have submitted your claim to the Manufacturer yourself, you must also tell us in writing that you have done so, within five (5) business days of submitting it. Claims may be made to ScaleFibre Australia Pty Ltd ABN 49 686 931 939, of 9 Florence St, Teneriffe, QLD 4005, Australia (business address), by post to PO Box 31, North Lakes, QLD 4509, Australia, by telephone on 1300 420 699, or by email to legal@scalefibre.com. On a valid claim under clause 8(g), 11(c) or 11(f) the Supplier will, at its option, repair or replace the Goods or refund the price paid. That election is the Supplier’s under those clauses only, and does not affect your rights under the Australian Consumer Law, including your right to choose a refund or a replacement where there is a major failure. You bear the expense of making a claim. Where the claim is upheld the Supplier bears the cost of return and of repair or replacement, and will reimburse your reasonable direct costs of return on production of a receipt to either of the above addresses. The benefits given by these warranties are in addition to other rights and remedies of the consumer under a law in relation to the Goods.

Clause 11A is a disclosure required by law and does not confer any contractual right additional to the Supplier Warranties, other than the Supplier’s obligation stated in it to reimburse the Purchaser’s reasonable direct costs of return on an upheld claim.

12. Australian Consumer Law

(a) Non-excludable rights prevail. Nothing in the Agreement excludes, restricts or modifies any guarantee, right or remedy conferred by the ACL or any other law that cannot lawfully be excluded, restricted or modified. Clauses 13 and 14 apply only to the extent permitted by law and are subject to this clause 12.

(b) Limitation for non-household goods. Where the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for failure to comply with a guarantee under the ACL (other than a guarantee under sections 51, 52 or 53 of the ACL) is limited, at the Supplier’s option, to one or more of: (i) replacement of the Goods or supply of equivalent goods; (ii) repair of the Goods; (iii) payment of the cost of replacing the Goods or acquiring equivalent goods; or (iv) payment of the cost of having the Goods repaired. This clause does not apply if the Purchaser establishes that it is not fair or reasonable for the Supplier to rely on it, having regard to the matters in section 64A(4) of the ACL.

(c) Not used.

(d) Resupply. If the Purchaser resupplies Goods to a Consumer, and the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Purchaser may limit its liability to that Consumer on terms equivalent to clause 12(b) to the extent permitted by law. Where the Supplier is a manufacturer of the Goods for the purposes of the ACL, the Purchaser has supplied those Goods to a consumer, and the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, section 276A of the ACL limits the Supplier’s liability to indemnify the Purchaser under section 274 of the ACL to the lowest of: (i) the cost of replacing the Goods; (ii) the cost of obtaining equivalent goods; and (iii) the cost of having the Goods repaired, except to the extent that the Purchaser establishes, having regard to the matters in section 276A(3) of the ACL, that it is not fair or reasonable for that liability to be so limited.

(e) Manufacturer status. The Purchaser acknowledges that the Supplier may be a manufacturer of the Goods for the purposes of the ACL, including where the Supplier’s brand or mark is applied to the Goods, where the Supplier holds itself out as the manufacturer, or where the Supplier imports Goods manufactured outside Australia by a Manufacturer without a place of business in Australia. Nothing in the Agreement affects any right the Purchaser or any other person has against the Supplier in that capacity that cannot lawfully be excluded, restricted or modified.

13. Disclaimer of Warranties

Subject to clause 12:

(a) The Purchaser acknowledges that it acquires the Goods for the purposes of a business, trade, profession or occupation, or for resupply, and not for personal, domestic or household use or consumption, and that the Supplier supplies them in reliance on that acknowledgement. This acknowledgement does not exclude, restrict or modify any guarantee, right or remedy conferred by the ACL, and does not affect the operation of clause 12.

(b) The Supplier Warranties are the only warranties given by the Supplier and are in place of all other warranties, conditions, representations and terms implied by statute, custom or otherwise, all of which are excluded to the fullest extent permitted by law. Nothing in this clause excludes or limits any express obligation of the Supplier under the Agreement. Nothing in this clause excludes, restricts or modifies any consumer guarantee under Part 3-2 Division 1 of the ACL or any other right or remedy that cannot lawfully be excluded, restricted or modified; those guarantees, rights and remedies apply despite this clause.

(c) Except as provided in clause 8(g), the Supplier gives no warranty that the Goods conform to any plan, specification, drawing or sample not expressly incorporated into the Special Conditions, and gives no warranty as to the accuracy of any information, safety data sheet, or warning supplied by a Manufacturer.

14. Limitation of Liability

Subject to clause 12:

(a) Liability cap. Each party’s total aggregate liability for all claims arising out of or in connection with the Agreement, whether in contract, tort (including negligence), in equity, under statute or under an indemnity, does not exceed the greater of: (A) AUD 50,000; and (B) the lesser of (1) the aggregate price paid or payable by the Purchaser for the Goods supplied under the orders to which the claims relate, and (2) the total price paid or payable by the Purchaser to the Supplier for all Goods in the twelve (12) months immediately preceding the date on which the first of those claims was notified in writing. The limit in this clause is a single aggregate limit for all claims by a party first notified in writing in any twelve (12) month period, under all contracts between the parties and under any Continuing Supply Arrangement, and applies however many claims are first notified in that period. A separate limit, calculated in accordance with this clause, applies to claims first notified in each subsequent twelve (12) month period. This clause does not limit: (i) the Purchaser’s obligation to pay the price, interest, storage charges, recovery costs, or any charge or reimbursement expressly payable under clause 3(d), 6(b), 7, 9, 10, 18(c) or 19(f); (ii) subject to paragraphs (iv) and (vi), any amount payable by the Purchaser under an indemnity in the Agreement in respect of a claim by a third party, which is instead subject to a separate cap of three times the amount determined under the first sentence of this clause and is not counted towards the cap applying to all other claims; (iii) any amount payable by the Purchaser under clause 2(h), or for breach of clause 16(b), which is instead subject to that separate cap and is not counted towards the cap applying to all other claims; (iv) either party’s liability for breach of clause 15(a) or 15(e), which is not subject to any cap, except that the Supplier is liable under this paragraph only in respect of its own breach of clause 15(e); (v) subject to paragraph (ii), either party’s obligation to pay, refund or credit an amount under clause 3(f), 4(i), 6(a), 7(d), 7(f), 7(h), 9(c), 10(e), 12, 15(h) or 19(g), but this paragraph does not apply to any amount payable under an indemnity; or (vi) any amount payable by the Purchaser under clause 3(d), 4(e) or 5(g), which is not subject to any cap and, despite paragraph (ii), is not subject to the separate cap in that paragraph. Either party’s liability for breach of clause 17 does not exceed three times the amount determined under the first sentence of this clause, and is not counted towards the cap applying to all other claims. Subject to paragraphs (i), (ii), (iii), (iv) and (vi), the Purchaser’s liability under any indemnity in the Agreement in respect of loss suffered by the Supplier itself, as distinct from liability to a third party, is subject to the cap in this clause. Either party’s liability for Removal Costs does not exceed the Removal Costs Sub-Cap for the affected Goods, and is not counted towards the cap applying to all other claims.

(b) Consequential Loss. Neither party is liable to the other for any Consequential Loss, however arising and whether or not that party was advised of the possibility of that loss. Nothing in this clause limits the Purchaser’s obligation to pay the price or any amount payable by the Purchaser under an indemnity in the Agreement in respect of a claim by a third party, the Supplier’s right to recover amounts payable under clause 3(d), 6(b), 7, 9, 10, 18(c) or 19(f), either party’s obligation to pay, refund or credit an amount under clause 12, or either party’s liability for breach of clause 15(a), 15(e), 16(b) or 17.

(c) Independence of this clause. The exclusions and limitations in clauses 14(a) and 14(b) are allocations of risk reflected in the price. The Purchaser acknowledges that it has been given a reasonable opportunity to read these Standard Terms and to propose Special Conditions varying this clause 14, and that the price reflects the allocation of risk in this clause 14. Those exclusions and limitations are independent and severable from the limited remedies in clauses 8(g), 11(c), 11(f), 15(h) and 16(d), and apply regardless of whether any limited remedy is not performed, does not achieve its intended result, is held to be void, unenforceable or unfair within the meaning of section 24 of the ACL, or is otherwise unavailable, and regardless of any breach of the Agreement, however fundamental or repudiatory.

(d) Proportionate reduction. The liability of a party for loss or damage sustained by the other is reduced proportionately to the extent that the loss or damage was caused or contributed to by that other party’s failure to comply with its obligations under the Agreement, or by its negligence or other wrongful act or omission, regardless of whether the claim is made in contract, in negligence, or under an indemnity.

(e) Mitigation. Neither party is liable for loss that the other party could have avoided by taking reasonable steps.

(f) Exceptions. Nothing in this clause 14, including clause 14(b), limits or excludes liability for: (i) fraud or fraudulent misrepresentation; or (ii) any liability that cannot be limited or excluded under applicable law. Nothing in this clause 14 other than clause 14(b) limits or excludes liability for (iii) death or personal injury caused by negligence, and clause 14(b) applies to that liability to the extent permitted by law. Apart from the exceptions in this clause, clauses 14(a) and 14(b) apply to all liability of a party, including liability arising from a deliberate, intentional or wilful breach of the Agreement or from wilful misconduct. Nothing in this clause 14 limits the Purchaser’s obligation to pay the price.

(g) No liquidated damages. No liquidated damages, delay penalty, or service credit applies to the Supplier under the Agreement unless expressly agreed in the Special Conditions.

(h) Supplier indemnity. The Supplier indemnifies the Purchaser against loss, liability, damage, claims, costs and expenses (including reasonable legal costs) in respect of: (i) death or personal injury; and (ii) loss of or damage to tangible property, including the Purchaser’s network, but excluding the Goods themselves, in each case caused by the negligence of the Supplier or of any person for whom it is responsible in connection with the supply of the Goods. Consistently with clause 14(f)(iii), the death and personal injury limb is not subject to any cap. The property damage limb is subject to a separate cap of three times the amount determined under the first sentence of clause 14(a), and is not counted towards the cap in clause 14(a). Clause 21(l) applies to this indemnity, except that the Supplier, and not the Purchaser, has conduct of the defence and settlement of any claim under it, and the Purchaser must not admit liability in respect of any such claim or settle it without the Supplier’s prior written consent, which must not be unreasonably withheld or delayed.

(i) Benefit of exclusions. Clauses 8, 11, 12, 13, 14 and 22(d) apply for the benefit of the Supplier and of each of its officers, employees, agents, subcontractors and Related Bodies Corporate, and the Supplier holds the benefit of those clauses on trust for each of them, and each of them may rely on those clauses as if a party to the Agreement. The Supplier is responsible for the acts and omissions of its subcontractors in performing the Agreement as if they were its own.

15. Trade and Regulatory Compliance

(a) Export control and sanctions. The Purchaser will comply with all applicable export control and sanctions laws, including the Customs Act 1901 (Cth), the Defence Trade Controls Act 2012 (Cth) and the Defence and Strategic Goods List, the Autonomous Sanctions Act 2011 (Cth), and the Charter of the United Nations Act 1945 (Cth), and with the export control and sanctions laws of any other applicable jurisdiction. The Purchaser represents that neither it nor any of its principals or owners is designated on the DFAT Consolidated List or on any comparable restricted party list. The Purchaser will not export, re-export, or transfer the Goods to any sanctioned destination or designated person. The Purchaser indemnifies the Supplier against all loss, liability, penalties, fines, costs and expenses (including reasonable legal costs) arising out of or in connection with any breach of this clause by the Purchaser. Breach of this clause is a material breach entitling the Supplier to terminate immediately.

(b) Telecommunications security and vendor restrictions. The Purchaser is responsible for determining whether the Goods satisfy any security, vendor or supply chain requirement applicable to it or to its customers. Where the Purchaser notifies the Supplier in writing before order acceptance that Goods are intended for a project subject to such a requirement, the Supplier will provide the Manufacturer declarations available to it for that order. The Supplier gives no representation as to equipment or services not supplied by it.

(c) Country of origin. Country of origin is as advised to the Supplier by the Manufacturer, is provided on request, and may vary between production runs. The Supplier makes no representation that the Goods satisfy any origin-based or local content requirement, and the Purchaser is responsible for determining whether the Goods satisfy any such requirement applicable to it or to its customers. Neither party will make any representation as to the origin of the Goods that is inconsistent with the information provided under this clause.

(d) Importer of record. Except on a delivered and duty-paid supply under clause 5(d), the Purchaser is the importer of record for any shipment imported into any jurisdiction in connection with the supply where the Purchaser or its nominee is the consignee, and is responsible for customs clearance, classification, valuation, and payment of duties.

(e) Anti-bribery. Each party will comply with all applicable anti-bribery and anti-corruption laws, including Division 70 of the Criminal Code Act 1995 (Cth), and will not offer, give, or receive any bribe, facilitation payment, or other improper advantage in connection with the Agreement. Each party will maintain adequate procedures designed to prevent bribery by its personnel and associates. Each party indemnifies the other against all loss, liability, penalties, fines, costs and expenses (including reasonable legal costs) arising out of or in connection with any breach of this clause by it. Breach of this clause is a material breach entitling the other party to terminate immediately under clause 19(b).

(f) Modern slavery. Each party will comply with all applicable modern slavery and human trafficking laws, including the Modern Slavery Act 2018 (Cth), and will provide such information as the other party reasonably requires to prepare a modern slavery statement.

(g) Product compliance and labelling. The Supplier makes no representation as to compliance of the Goods with any electrical safety, telecommunications labelling, chemical content, or product compliance regime, beyond passing on the declarations and warning materials provided to it by the Manufacturer, which it will supply on request. The Purchaser is responsible for determining the requirements applicable to its own use and onward supply of the Goods, including any labelling or compliance requirement applicable to customer cabling or customer equipment, and for applying any label or warning required in the jurisdiction of resupply or installation. The Purchaser will indemnify the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) arising from the Purchaser’s failure to apply any label or warning so required. Nothing in this clause excludes, restricts or modifies any right or remedy of the Purchaser under clause 12 or under the Australian Consumer Law.

(h) Safety incidents and recall. The Purchaser must notify the Supplier in writing immediately, and in any event within two (2) business days, of becoming aware of any death, serious injury or illness, property damage, or safety defect associated with the Goods, or of any recall, field notice or regulatory enquiry affecting them. The Purchaser must maintain records sufficient to identify, by batch, drum or serial number, each person to whom it has resupplied Goods and the location at which they were installed, and must retain those records for seven (7) years from resupply. Where the Supplier notifies the Purchaser of a recall or corrective action, the Purchaser must immediately cease supply and use of the affected Goods, pass the notice on to each person to whom it resupplied them, and provide all reasonable assistance the Supplier requires. The Supplier will reimburse the Purchaser’s reasonable direct costs of complying with this clause where the recall arises from a defect in the Goods as supplied. Reimbursement under this clause is in addition to any remedy under clause 8(g), 11(c) or 11(f), and is limited to the Purchaser’s reasonable direct costs of notification, of retrieval and of record-keeping. In this clause, retrieval means the recovery, collection, quarantine, transport and return of affected Goods that are in the possession of the Purchaser, or of a person to whom the Purchaser has resupplied them, and that are not installed, and does not include removal, de-installation, reinstallation, replacement or make-good. It does not extend to any Consequential Loss, and, other than a claim for Removal Costs, the Purchaser has no other claim against the Supplier in respect of a recall or corrective action. This clause is subject to clauses 12, 13 and 14.

(i) Personal information. Where either party discloses personal information (as defined in the Privacy Act 1988 (Cth)) to the other in connection with the Agreement, the recipient must: (i) handle that information in accordance with the Privacy Act 1988 (Cth) and the Australian Privacy Principles, whether or not it is an APP entity; (ii) use and disclose it only for the purposes of the Agreement or as required by law; (iii) take reasonable steps to protect it from misuse, interference, loss, and unauthorised access, modification or disclosure; and (iv) notify the other party in writing as soon as practicable, and in any event within forty-eight (48) hours, of becoming aware of any unauthorised access to or disclosure of that information, and provide all reasonable assistance in connection with any assessment or notification under Part IIIC of that Act. Where the Purchaser is required to maintain records under clause 15(h) that contain personal information, it must retain those records securely, use them only for the purposes of clause 15(h), and destroy or de-identify them at the end of the seven (7) year period. Where the Supplier requests production of those records, the Supplier may use them only for the purposes of the relevant recall, corrective action or safety investigation.

(j) Audit of records. Not more than once in any twelve (12) month period, and on not less than ten (10) business days’ written notice, the Supplier may audit the Purchaser’s records for the sole purpose of verifying the Purchaser’s compliance with clause 15(h) and clause 4(f). An audit is limited to the records the Purchaser is required to keep under clause 15(h) and to records evidencing the location, quantity, identification, storage, insurance, sale and other disposition of Goods for which Full Payment has not been made, and does not extend to any other record, system, premises or personnel of the Purchaser. The audit must be conducted during business hours, by the Supplier or by an independent auditor appointed by it and bound by obligations of confidentiality no less onerous than clause 17, in a manner that does not unreasonably disrupt the Purchaser’s business, and in accordance with the Purchaser’s reasonable site access, safety and security requirements. The Purchaser must give the Supplier or the auditor reasonable access to, and on request copies of, the records within the scope of the audit. Clause 17 applies to all information obtained on an audit, the Supplier may use that information only to verify compliance with clauses 15(h) and 4(f) and to exercise its rights in respect of any non-compliance, and clause 15(i) applies to any personal information contained in the records. The Supplier bears its own costs of an audit and the Purchaser’s reasonable costs of complying with it, unless the audit discloses material non-compliance with clause 15(h) or clause 4(f), in which case the Purchaser must reimburse the Supplier’s reasonable costs of the audit and the Supplier may conduct one further audit within the following twelve (12) months at the Purchaser’s cost. This clause does not limit clause 4(e), clause 4(f)(ii) or clause 15(h).

(k) Supply chain and cyber security. This clause applies where the Purchaser has notified the Supplier in writing before order acceptance that the Purchaser, or a customer of the Purchaser to whom the Purchaser will resupply the Goods, is subject to a risk management program or an equivalent regulatory obligation requiring supply chain risks to be identified, assessed and mitigated. Subject to clauses 13 and 14: (i) Incident notification. The Supplier will notify the Purchaser in writing as soon as practicable, and in any event within five (5) business days, of becoming aware of a cyber security incident affecting the Supplier’s own systems that the Supplier reasonably considers has had, or is likely to have, a material adverse effect on the Goods supplied to the Purchaser or on Purchaser data held by the Supplier, and will keep the Purchaser reasonably informed of the steps it is taking in response. Clause 15(i) applies separately in respect of personal information. (ii) Change of ownership or control. The Supplier will notify the Purchaser in writing within ten (10) business days of any change in the direct or indirect ownership or control of the Supplier, other than a dealing in the quoted securities of an entity listed on a prescribed financial market. (iii) Information for the Purchaser’s program. On the Purchaser’s reasonable written request, and at the Purchaser’s reasonable cost, the Supplier will provide information in its possession as to the Supplier’s own security practices and as to the provenance of the Goods that the Purchaser reasonably requires for the purposes of that program or obligation, and will use reasonable endeavours to obtain from the relevant Manufacturer any equivalent information that the Manufacturer makes available. The Supplier need not disclose information that is subject to an obligation of confidence owed to a third party, that is subject to legal professional privilege, or the disclosure of which would in the Supplier’s reasonable opinion compromise the security of its systems or the confidentiality of another customer’s information. (iv) No responsibility for the Purchaser’s compliance. Nothing in this clause makes the Supplier responsible for the Purchaser’s or any other person’s compliance with any regulatory obligation, and clause 15(b) continues to apply. The Supplier gives no representation or warranty that the Goods or the Supplier’s practices satisfy any such obligation, and information provided under this clause is provided for the Purchaser’s own assessment and at the Purchaser’s own risk. (v) All information provided under this clause is confidential information of the Supplier for the purposes of clause 17.

(l) Packaging and product stewardship. The Purchaser must return reusable drums and reels in accordance with clause 7(f). Where a drum, reel or other packaging is identified by the Supplier as non-returnable, or is not returned within the period in clause 7(f), the Purchaser is responsible for its lawful reuse, recycling or disposal, and for the lawful disposal of all other packaging, offcuts and waste arising from its use or installation of the Goods, in each case in accordance with applicable waste, recycling and environmental laws. Each party will provide the other with such information as it reasonably requires in connection with any packaging, recycling or product stewardship scheme to which that other party is subject. Nothing in this clause makes the Supplier responsible for the Purchaser’s compliance with any such scheme, or obliges the Supplier to accept the return of, or to collect, any packaging, drum or reel other than as provided in clause 7(f).

16. Intellectual Property and Trademarks

(a) Ownership of all intellectual property in the Goods, specifications, and documentation remains with the Supplier or the relevant Manufacturer. The Supplier grants the Purchaser a limited, royalty-free, non-exclusive licence to use that intellectual property for the use, maintenance, resupply, and marketing of the Goods, and to reproduce the Supplier’s Datasheets unaltered for the purpose of resupplying the Goods. That licence may be sub-licensed through the Purchaser’s distribution chain to any subsequent purchaser or end user of the Goods, and is irrevocable in respect of Goods supplied before termination.

(b) Except as expressly agreed in the Special Conditions, the Purchaser must not alter, remove, obscure, or add to any trade mark, brand, or marking on the Goods, and must not apply any other trade mark or trade name to the Goods.

(c) The Purchaser must notify the Supplier immediately on becoming aware of any actual or potential infringement of the Supplier’s trade marks.

(d) If a third party alleges that standard, non-customised Goods infringe any patent, trade mark, copyright, registered design, circuit layout right or other intellectual property right, the Purchaser must notify the Supplier immediately. The Supplier’s liability is limited, at its option, to obtaining the right to continued use, replacing the Goods, or refunding the price paid. No remedy is available where the claim arises from customisation, from compliance with the Purchaser’s specifications, from the Purchaser’s marketing, or from combination with third-party products.

(e) Where Goods are manufactured to the Purchaser’s specifications, the Purchaser will indemnify the Supplier against all loss, liability, damage, claims, penalties, costs and expenses (including reasonable legal costs) in respect of intellectual property infringement arising from those specifications.

(f) Manufacturer indemnities. The Supplier does not design or manufacture the Goods, except as stated in clause 11(c), and clause 12(e) applies to its status as a manufacturer for the purposes of the ACL. The Supplier assigns and passes through to the Purchaser, to the extent assignable, the benefit of any intellectual property indemnity given to the Supplier by the Manufacturer in respect of the Goods, and will provide the substance of its terms on request, which it may provide by way of a statement issued by the Supplier or in redacted form. Where such an indemnity is not assignable, the Supplier will, at the Purchaser’s written request and cost, pursue the indemnity claim against the Manufacturer on the Purchaser’s behalf and account to the Purchaser for the proceeds. The Supplier gives no independent indemnity in respect of any third-party intellectual property claim, and clause 16(d) states the Purchaser’s sole remedy against the Supplier in respect of any such claim.

(g) Firmware and embedded software. Where Goods contain firmware or embedded software, that firmware or software is licensed and not sold. The Supplier grants the Purchaser a non-exclusive licence, non-transferable except on an assignment permitted under clause 21(a), to use it solely as embedded in the Goods and for the purpose of operating the Goods, and that licence may be sub-licensed through the Purchaser’s distribution chain to any subsequent purchaser or end user of the Goods. The Purchaser must not reverse engineer, decompile, disassemble, modify or create derivative works of that firmware or software except to the extent that restriction is prohibited by law. Open source components are licensed under their own terms, which prevail over this clause to the extent of any inconsistency, and the Supplier will identify those components on request. Where Goods are coded or keyed for compatibility with particular host equipment, the coding is as stated in the applicable Datasheet or the Confirmation Email, and the Purchaser is responsible for confirming compatibility with its own equipment before ordering.

17. Confidentiality

(a) Each party (the Receiving Party) must keep confidential all specifications, drawings, pricing, forecasts, and technical or commercial information disclosed to it by the other party (the Disclosing Party), must use it only for the purposes of the Agreement, and must not disclose it without the Disclosing Party’s prior written consent, except to its employees, professional advisers, insurers, financiers, and Related Bodies Corporate who need to know it and are bound by equivalent obligations, and, in the case of the Supplier, to Manufacturers, testing houses, credit reporting bodies, credit insurers, debt collection agencies, and logistics and customs providers, in each case to the extent necessary to perform the Agreement and where bound by equivalent obligations.

(b) This clause does not apply to information that: (i) is or becomes public other than through breach of this clause; (ii) was lawfully known to the Receiving Party without restriction before disclosure; (iii) is received from a third party without restriction; (iv) is independently developed without use of the Disclosing Party’s information; or (v) the Receiving Party is required to disclose by law or by a regulatory or judicial authority, provided it gives the Disclosing Party prompt notice where lawful to do so.

(c) On termination or on the Disclosing Party’s written request, the Receiving Party will return or destroy the Disclosing Party’s confidential information, except for copies retained in routine backup systems or as required by law.

(d) The obligations in this clause continue for five (5) years after termination or expiry, and indefinitely in respect of any information that constitutes a trade secret.

(e) Publicity and references. Despite clause 17(a), the Supplier may identify the Purchaser as a customer of the Supplier by name and logo in its customer lists, on its website, in tender, pre-qualification and capability submissions, and in internal credentials material, and may state in general terms the nature of the Goods supplied. In doing so the Supplier must not disclose the price or volume of any supply, any network design, route or site location information, or any other confidential information of the Purchaser. Any case study, media release, award submission, customer testimonial or other publication that goes beyond the first sentence of this clause requires the Purchaser’s prior written consent, which must not be unreasonably withheld or delayed. The Purchaser may withdraw the right conferred by the first sentence of this clause at any time by written notice, in which case the Supplier will cease the relevant use within thirty (30) days, other than in material already printed or distributed and in archived material. Any use of the Purchaser’s name or logo is subject to the Purchaser’s reasonable brand guidelines notified in writing to the Supplier, and confers no right in the Purchaser’s trade marks other than as expressly stated in this clause. Neither party may otherwise use the other party’s name, logo or trade marks without prior written consent.

18. Force Majeure

(a) Neither party is liable for any failure or delay in performance, other than an obligation to pay money, due to causes beyond its reasonable control. An event is a cause beyond a party’s reasonable control for the purposes of this clause only where the event, or its effect on the affected party, was beyond that party’s reasonable control and could not have been avoided or overcome by the exercise of reasonable diligence, whether or not the general possibility of an event of that kind was foreseeable. That requirement applies to every event listed in this clause. Subject to that requirement, causes beyond a party’s reasonable control include acts of God, fire, flood, storm, drought, cyclone, war, terrorism, riot, civil commotion, embargo, strikes and labour disputes, epidemic or pandemic, cyber attack, plant or mechanical breakdown, carrier failure, supply chain disruption, upstream supplier or component shortages, and governmental action prohibiting or preventing performance. A change in tariffs or duties is not a force majeure event and is dealt with under clause 9(e).

(b) The affected party must notify the other party promptly and must use reasonable endeavours to mitigate the effect of the event. The affected party’s time for performance is extended for the duration of the event.

(c) Termination for prolonged force majeure. (i) Where the Supplier is the affected party and the event continues for more than sixty (60) days, the Supplier may terminate the affected order, or so much of it as is affected by the event, on written notice to the Purchaser. (ii) Where the event continues for more than one hundred and eighty (180) days, either party may terminate the affected order, or so much of it as is affected by the event, on written notice. (iii) On termination under this clause the Purchaser must pay for Goods already delivered, for all work performed on cut cable, custom or made-to-order Goods, and for all costs reasonably incurred and irrevocable commitments reasonably made by the Supplier in respect of undelivered cut cable, custom or made-to-order Goods and NCNR Goods. (iv) Where the Purchaser pays an amount under paragraph (iii) in respect of cut cable, custom or made-to-order Goods or NCNR Goods that are complete or partly complete, or in respect of raw materials or work in progress, the Supplier must at the Purchaser’s cost and direction deliver those Goods, materials and work in progress to the Purchaser, and title in them passes to the Purchaser on payment in full and in cleared funds of that amount. (v) Clause 19(g) applies to any amount prepaid in respect of Goods not delivered. (vi) Termination by the Supplier under paragraph (i) does not entitle the Supplier to any amount in respect of the terminated order other than as provided in paragraph (iii), and does not of itself constitute a breach of the Agreement by the Supplier.

(d) The Supplier is under no obligation to allocate Goods in short supply in any particular manner.

19. Termination

(a) For convenience. Either party may terminate any Continuing Supply Arrangement on thirty (30) days’ written notice, except that the Supplier’s rights under clauses 3(a) and 3(e) are not subject to this clause. Termination under this clause does not affect any order already accepted by the Supplier, which continues to be governed by the Agreement and may be cancelled only in accordance with clause 7(e).

(b) For cause. A party may terminate the Agreement, or any order under it, immediately by written notice if the other party: (i) suffers an Insolvency Event; (ii) commits a material breach that is not capable of remedy, other than a failure to pay an amount disputed by the Purchaser in good faith under clause 10(e); (iia) breaches clause 15(e); or (iii) commits a material breach that is capable of remedy, other than a failure to pay an amount disputed by the Purchaser in good faith under clause 10(e), and does not remedy it within ten (10) business days of written notice.

(c) Supplier’s additional rights. The Supplier may terminate the Agreement, or any order under it, immediately by written notice if the Purchaser: (i) fails to make any payment when due (other than an amount disputed by the Purchaser in good faith under clause 10(e)) and does not remedy that failure within ten (10) business days of written notice; (ii) breaches clause 15(a) or 15(e); or (iii) commits a material breach of the Supplier’s, or of a Manufacturer’s, intellectual property rights in or in connection with the Goods, and does not remedy that breach within five (5) business days of written notice where it is capable of remedy.

(d) Termination does not affect any accrued right or liability of either party.

(e) Ipso facto stays. Where the exercise of a right under clause 19(b)(i), clause 19(f) or clause 4(i), or the operation of paragraph (b) or paragraph (f) of the definition of Event of Default, is stayed by section 415D, 415F, 434J, 434K, 451E, 451F or 454N of the Corporations Act 2001 (Cth), that right is suspended and not extinguished, and revives to the fullest extent the law allows. To the extent the law permits, nothing in this clause limits the Supplier’s rights under clause 3(e), clause 3(f), clause 4, clause 19(c)(i) or clause 19(f), or its rights as a secured party under the PPSA.

(f) Consequences of termination by the Supplier. On termination by the Supplier under clause 19(b) or 19(c), or on the occurrence of an Event of Default: (i) all amounts owing by the Purchaser to the Supplier on any account become immediately due and payable, whether or not previously due; and (ii) the Purchaser must pay the Supplier for all Goods delivered, all work performed on cut cable, custom or made-to-order Goods, and all costs reasonably incurred and irrevocable commitments reasonably made in respect of undelivered Goods, reduced by any amount the Supplier realises, or could by reasonable endeavours realise, on the sale or other use of those undelivered Goods, materials or work in progress. Where the Purchaser pays an amount under paragraph (ii) in respect of Goods, materials or work in progress that are complete or partly complete, the Supplier must at the Purchaser’s cost and direction deliver them to the Purchaser, and title in them passes to the Purchaser on payment in full and in cleared funds of that amount.

(g) Consequences of termination by the Purchaser, and refunds. On termination by the Purchaser under clause 19(b), the Purchaser must pay the Supplier for all Goods delivered and accepted, and the Supplier must refund any amount prepaid by the Purchaser in respect of Goods not delivered. Where an order or the Agreement is terminated or cancelled otherwise than by reason of an Event of Default or the Purchaser’s breach, the Supplier will refund any amount prepaid by the Purchaser in respect of Goods not delivered, less any amount the Purchaser is required to pay under clause 7(e) or 18(c).

(h) Administration. The Purchaser acknowledges that, where the Purchaser is under administration, the Supplier’s rights under clause 4(i) may be exercised only with the written consent of the administrator or the leave of the Court, and the Purchaser and, where applicable, its administrator must on request provide the Supplier with the location, description and quantity of all Goods in which the Supplier holds a Security Interest within five (5) business days. Nothing in the Agreement limits the Supplier’s rights under sections 441A to 441JA of the Corporations Act 2001 (Cth) or its right to apply for leave under section 440B of that Act.

20. Amendments

(a) The Supplier may vary these Standard Terms by giving at least thirty (30) days’ written notice, including to reflect changes in law, in the Goods, or in the Supplier’s operations. Notice is given by publishing the varied Standard Terms on the Supplier’s website and, where the Purchaser has an open order or an approved credit account, by notice under clause 21(b).

(b) Varied terms take effect at the end of the notice period and apply only to orders accepted on or after that date. Orders already accepted continue to be governed by the Standard Terms in force when they were accepted. This clause determines the version of these Standard Terms governing an order, and prevails over any inconsistent statement in a Confirmation Email despite clause 1.2(b).

(c) Continued ordering after the varied terms take effect constitutes acceptance of them. If the Purchaser does not accept the varied terms, it may by written notice given before the varied terms take effect terminate any Continuing Supply Arrangement without charge, and in any event is not bound by the varied terms in respect of any order accepted before they take effect. Termination under this clause does not affect any order already accepted by the Supplier, which continues to be governed by the Standard Terms in force when it was accepted and may be cancelled only in accordance with clause 7(e).

21. General

(a) Assignment. The Purchaser may not assign or subcontract the Agreement without the Supplier’s prior written consent, which will not be unreasonably withheld. The Supplier may assign or subcontract the Agreement or any part of it, provided that the assignment does not materially and detrimentally affect the Purchaser’s rights under the Agreement and the assignee assumes the Supplier’s obligations under it.

(b) Notices. Notices must be in writing and sent to the Purchaser at the address or email address specified in the Confirmation Email or credit application, and to the Supplier by email to legal@scalefibre.com or by prepaid post to ScaleFibre Australia Pty Ltd, PO Box 31, North Lakes, QLD 4509, Australia, in each case marked for the attention of Legal. Either party may change its address or email address for notices by written notice to the other given under this clause and taking effect five (5) business days after it is received, and a notice sent to the last address or email address notified under this clause is effectively given. Notice sent by email is received when it becomes capable of being retrieved at that address, or on the next business day if that time is outside business hours. Notice delivered by hand is received on delivery, and notice sent by prepaid post is received on the third business day after posting.

(c) Severability and reading down. If any provision of the Agreement is void, voidable or unenforceable under any applicable law, it is read down to the extent necessary to make it valid and enforceable or, if it cannot be read down, is severed. If any term of the Agreement is unfair within the meaning of section 24 of the ACL, that term is void and the Agreement continues to bind the parties to the extent it is capable of operating without it. The remaining provisions continue in full force.

(d) Waiver. No failure or delay in exercising a right operates as a waiver, and no single or partial exercise precludes further exercise.

(e) Survival. Clauses 1, 2(h), 2(i), 3(d), 3(f), 3(g), 3(h), 3(i), 4, 5(c), 5(d), 5(e), 5(g), 6(a), 6(c), 6(d), 7(c), 7(d), 7(e), 7(f), 7(i), 7(j), 8(c), 8(d), 8(e), 8(f), 8(g), 9(a), 9(b), 9(c), 9(d), 9(g), 10, 11, 11A, 12, 13, 14, 15, 16, 17, 18(c), 19(d), 19(e), 19(f), 19(g), 19(h), 20(b), 20(c), 21, and 22 survive termination or expiry. A clause that survives does so only in respect of Goods supplied, orders accepted and rights accrued before termination or expiry, and does not oblige either party to accept or place any further order.

(f) No third-party rights. The Agreement confers no right on any person other than the parties. No promise in the Agreement is intended to be, or is, for the benefit of any person who is not a party to it. Section 68 of the Property Law Act 2023 (Qld), section 55 of the repealed Property Law Act 1974 (Qld) in respect of any promise made before 1 August 2025, and any corresponding provision in another jurisdiction, do not apply to the Agreement, except that clauses 14(i), 16(a) and 16(g) operate according to their terms in favour of each person, and each member of a class of persons, identified in them, and nothing in this clause affects clause 12(e). For the purposes of section 68(3) of the Property Law Act 2023 (Qld), the parties may terminate or modify the Agreement or any promise in it by agreement between them at any time, without the consent of any third party, whether or not that third party has accepted the benefit of the promise.

(g) Relationship. Nothing in the Agreement creates any partnership, joint venture, agency, or employment relationship. Manufacturers are not agents, subcontractors, or representatives of the Supplier.

(h) Counterparts and electronic signature. The Agreement may be executed in counterparts and by electronic signature.

(i) Further assurance. Each party will do all things reasonably necessary to give full effect to the Agreement.

(j) Trustees. The Purchaser must notify the Supplier in writing before placing an order if it enters the Agreement as trustee of any trust. A Purchaser that is a trustee is bound both personally and in its capacity as trustee, and warrants that it has power under the trust deed to enter the Agreement, that it has a full right of indemnity out of the assets of the trust in respect of its obligations under the Agreement, and that it will not do anything to prejudice that right.

(k) Joint and several. Where the Purchaser comprises more than one person, each is bound jointly and severally.

(l) Indemnities. Each indemnity in the Agreement is a continuing obligation, independent of the other obligations of the parties, and survives termination. The indemnified party need not incur expense or make payment before enforcing an indemnity. Where an indemnity relates to a claim by a third party, the indemnified party will notify the indemnifying party promptly on becoming aware of the claim, and will provide such assistance and access to documents as the indemnifying party reasonably requires at the indemnifying party’s cost. The indemnified party retains conduct of the defence and settlement of the claim and may settle it acting reasonably, provided it consults the indemnifying party before doing so and, where the indemnifying party has accepted liability under the indemnity in writing and is not in default, obtains that party’s consent, which must not be unreasonably withheld or delayed. Failure to comply with this clause reduces the indemnifying party’s liability only to the extent it is actually prejudiced by that failure, and does not otherwise affect the indemnity. The indemnities in the Agreement are: those given by the Purchaser in clauses 2(h), 3(d), 3(f), 4(e), 4(i), 5(g), 8(d), 8(e), 15(a), 15(e), 15(g) and 16(e); and those given by the Supplier in clauses 14(h) and 15(e). Each of them is limited by clause 14 except to the extent clause 14 expressly provides otherwise. This list is included for convenience only and does not create, extend or limit any indemnity.

(m) Not used.

22. Governing Law, Jurisdiction and Limitation of Actions

(a) Governing law. The Agreement is governed by the laws of Queensland, Australia.

(b) Jurisdiction. The parties submit to the exclusive jurisdiction of the courts of Queensland and the courts competent to hear appeals from them.

(c) Recovery and enforcement. Despite clause 22(b), the Supplier may bring proceedings for the recovery of amounts owing, or for the enforcement of its Security Interest or lien under clause 3(f) or clause 4, in any court of competent jurisdiction where the Purchaser is located or where the Goods are located.

(d) Limitation of actions. No action by either party arising out of or in connection with the Agreement may be commenced more than three (3) years after the cause of action accrues, except that an action for breach of a Supplier Warranty may be commenced within three (3) years after expiry of the Warranty Period, and an action under clause 16(d) may be commenced within three (3) years after the Purchaser notifies the Supplier of the relevant allegation. This clause does not apply to an action by either party for the recovery of any amount owing to it, or for the enforcement of a Security Interest or lien granted under clause 3(f) or clause 4. An action under any indemnity in the Agreement must be commenced within three (3) years after the indemnified party has discharged the liability to which the indemnity relates. This clause does not apply to a claim for death or personal injury, or to any claim that cannot lawfully be barred by agreement, including a claim under the ACL.

(e) International conventions excluded. The United Nations Convention on Contracts for the International Sale of Goods, given effect in Australia by the Sale of Goods (Vienna Convention) Act 1986 (Qld) and its equivalents in other Australian jurisdictions, does not apply to the Agreement.

(f) Dispute escalation. Before commencing proceedings, a party must give written notice of the dispute and the parties must procure that a senior representative of each meets, in person or by video conference, within fifteen (15) business days of that notice to attempt to resolve it in good faith. The running of each period in clause 22(d) is suspended in respect of a dispute from the date written notice of that dispute is given until thirty (30) days after the meeting required by this clause has taken place or, if no meeting takes place, thirty (30) days after the fifteen (15) business day period has expired. A period may be suspended only once in respect of any one dispute, and a further notice of the same dispute, or of a dispute arising out of substantially the same facts, does not suspend the running of any period. The aggregate suspension of any period under this clause must not exceed ninety (90) days, whether in respect of one dispute or more than one. If the meeting does not take place within that period, either party may commence proceedings. This clause does not prevent either party from seeking urgent interlocutory or injunctive relief, does not apply to proceedings under clause 22(c), and does not apply to any payment claim, payment schedule, adjudication application or other action under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) or corresponding legislation.

If you have questions, contact us:
General enquiries Email: info@scalefibre.com
Legal notices under clause 21(b) Email: legal@scalefibre.com
Telephone: 1300 420 699

ScaleFibre Australia Pty Ltd ABN 49 686 931 939
Business address: 9 Florence St, Teneriffe, QLD 4005, Australia
Postal address: PO Box 31, North Lakes, QLD 4509, Australia