Terms of service

 

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

Confidential Information means in respect of a party, any information relating to the business, customers, and finances of that party and includes

information of a confidential nature, information marked ‘confidential’, ‘secret’, ‘private’ or ‘private and confidential but excludes information that:

a) is or subsequently enters the public domain other than through a breach of other party of its obligations under the present Terms and Conditions, or b) is developed by the other party independently and without reference to any confidential information of the first party;

Customer means the party to whom a Proposal is made as specified in the Present Terms and Conditions and shall include executors, administrators, successors, and permitted assigns;

GST means Goods and Services Tax as defined in the A New Tax System

(Goods and Services Tax) Act 1999 (Cth) as enacted and amended from time to time;

Intellectual Property means all current and future registered and

unregistered rights in respect of copyright, designs, circuit layouts, trade

names, trademarks, trade secrets, know-how, confidential information,

patents, inventions and discoveries, and all other intellectual property as

defined in Article 2 of the Convention Establishing the World Intellectual

Property Organisation 1967 (as amended from time to time);

Order means a contract to supply Products, including an accepted Proposal;

Price means the amount to be paid by the Customer to CELSA for the purchase of the Products;

Products mean goods, plant, equipment, or materials (and, if applicable,

auxiliary services) provided by CELSA pursuant to the present Terms and

Conditions and as more particularly described in the Proposal;

Proposal means the offer by CELSA to the Customer to supply the Products;

CELSA means CELSA Pty Ltd (A.B.N. 69 666 926 638);

1.2 Interpretation

In the present Terms and Conditions:

a) The singular includes the plural and vice versa, and words importing a

gender includes other genders.

b) Headings are for reference only and shall not affect the meaning of the

present Terms and Conditions.

c) Words and expressions importing natural persons include partnerships,

bodies corporate, associations, governments and governmental and local

authorities and agencies.

 

2. PROPOSAL

2.1 CELSA may vary the content of a Proposal at any time before acceptance.

2.2 Unless otherwise stated in a Proposal, that Proposal remains open for

acceptance for thirty (30) days after its date, or until withdrawn (whichever is the earlier).

 

3. ACCEPTANCE OF PROPOSAL

3.1 A Proposal may only be accepted in writing signed by the Customer,

including by a purchase order signed by the Customer. The Customer agrees

that no Customer terms and conditions apply to the supply of Products.

3.2 Any attempt by the Customer unilaterally to vary the content of an Order

(including these Terms and Conditions) at any time, whether orally or in writing, is void. CELSA needs not respond in any way to any attempt by the Customer to vary the content of a Proposal (including the present Terms and Conditions). Any attempt by the Customer to do so:

a. orally is void; and

b. in writing (including any Customer purchase order), is void, unless the

variation is signed by an authorised representative of CELSA.

3.3 CELSA may, by notifying the Customer in writing within two (2) business

days after receipt of the Customer's written acceptance, reject an Order at its sole discretion, in which case that Order is void ab initio and CELSA is not liable to the Customer in any way, whether in contract, tort or under the statute.

 

4. CANCELLATION

With CELSA's written approval, Buyer may cancel its order prior to the

shipment of products. CELSA may cancel Buyer's order or require payment in advance if Buyer transfers assets for the benefit of its creditors, or if CELSA has reason to believe Buyer is unwilling or unable to perform its commitments. If Buyer cancels its order other than as permitted by this section, Buyer must pay CELSA all amounts due pursuant to the order. If the Buyer's order is cancelled for any reason. Buyer will pay CELSA for reasonable costs and expenses (including engineering expenses and all commitments to CELSA's suppliers and subcontractors) incurred prior to CELSA receiving notice of cancellation, plus CELSA's usual rate of profit for similar work. The minimum cancellation charge is 15% of the price.

 

5. VARIATIONS

5.1 If the Customer requests (verbally or in writing) a variation to an Order:

a. CELSA will use its reasonable efforts to comply with the request; and

b. if CELSA can comply with the request:

i. the Customer must pay CELSA the amounts reasonably invoiced for the

variation; and

ii. CELSA will advise the Customer of any delivery delay resulting from the

request.

5.2 CELSA may increase the price stated in an Order to cover extra costs

incurred by it attributable to the Customer's delay.

5.3 CELSA may make changes to the Products, their delivery or packaging:

a. without notifying the Customer, if the changes improve the Products or do not substantially deviate from the original specifications for Products; or

b. in other cases, with the Customer's approval.

 

6. PRICE AND PAYMENT

6.1 The Price of Products shall be specified in the Proposal to the Customer.

All Prices stated in the Proposal shall be expressed as being exclusive of GST. GST is to be separately identified. If GST is applicable to any of the Products, CELSA shall be entitled to charge an additional amount for GST applicable.

6.2 The Price does not include any sales consumer tax, and/or other similar

taxes, excise and custom duties, required by law either in Australia or in the

country of delivery of the Products. The Customer shall bear sole responsibility for the payment of such tax or duty.

6.3 The Price shall be adjusted upon increase in the cost of raw materials and wages or foreign exchange rate fluctuations according to the formula

determined by CELSA and upon notice to the Customer.

6.4 CELSA shall issue a tax invoice in accordance with all relevant legislation and regulations. The Customer shall also pay any due GST amount at the same time as the payment. Unless otherwise stated in a Proposal, the Customer must pay CELSA within thirty (30) days from the date of each invoice.

6.5 In the event payment is not made in accordance with the provisions of this clause, the Customer shall pay to CELSA a monthly late charge equal to one and one-half percent (1.5%) per month of all unpaid balances or the maximum amount permitted by law if that is less. All debt recovery costs, if any, shall be borne by the Customer; all other expenses (including without limitation, administration costs and attorney’s fees on a full indemnity basis) incurred by CELSA in collecting late payments must be paid by the Customer.

6.6 Nothing in the provisions of clause 6.5 above shall limit any right CELSA

may otherwise have to recover payment of due amounts and damages.

 

7. DELIVERY AND RISK

7.1 Unless otherwise stated in an Order:

a. CELSA shall deliver the Products on an EXW (Incoterms 2010) basis at the named place of delivery specified in the Proposal;

b. the Customer must arrange to pick up the Products immediately; and

c. all risks including risk of loss, deterioration or damage to the Products from any cause whatsoever shall pass to the Customer upon delivery.

7.2 If, after a period of fourteen (14) days after CELSA has notified the Customer that the Products are ready for delivery, the Customer has not

picked up or procured the pickup of Products for any reason beyond CELSA’s reasonable control, CELSA shall be entitled at CELSA’s option to

make all arrangements CELSA deems necessary for the storage and protection of the Products at CELSA’s premises or elsewhere. The Customer shall accept and indemnify CELSA against all costs of storage, insurance, transportation, demurrage, handling and all other costs and expenses incurred by CELSA in so doing.

7.3 Any delivery time, completion date or completion period quoted in a

The proposal is an estimate only and is not to be construed as fixed or binding upon CELSA unless expressed as such in writing by CELSA in its Proposal. While CELSA will use its reasonable efforts to ensure delivery of Products as stated in the Proposal:

a. the Customer shall not be entitled to rescind or terminate an Order; and

b. CELSA shall not be liable in any way, whether in contract, tort or under

statute, because of delay in delivery of part or all of the Products.

 

8. TITLE TO PRODUCTS

8.1 Subject to clauses 8.2, 8.3, 8.4, 8.5 and 9 below, CELSA warrants full and unrestricted title to the Customer for the Products sold by CELSA under the present Terms and Conditions free and clear of all liens, restrictions,

reservations, security interests and encumbrances.

8.2 Ownership of the Products supplied under an Order only passes to the

Customer when all of the Products under that Order have been paid for in full. Until then:

a. ownership of the Products remains with CELSA; and

b. the Customer must store the Products separately from its own goods and

keep the Products fully insured at the Customer’s expense and hold the

proceeds of any insurance claim in respect of the Goods (to the full extent of the Customer’s debt to CELSA) on trust for CELSA.

8.3 This clause 8 shall apply notwithstanding the incorporation of the Products or any part thereof into any plant, material, goods or property of the Customer.

8.4 The Customer also acknowledges that until the Customer’s total

indebtedness to CELSA under an Order is discharged, the Customer holds

the Products as Bailee of CELSA and that a fiduciary relationship exists

between CELSA and the Customer.

8.5 In the event that the Customer sells the Products or any part thereof to its own customers before payment in full for the Products has been made to CELSA, then the Customer in a position of fiduciary shall:

a. assign to CELSA the benefit of any claim against any such customer(s);

b. hold the proceeds of the sale separately on behalf of CELSA; and

c. account fully to CELSA for the proceeds of the sale of the Products sold or any part thereof until the Customer’s total indebtedness to CELSA is

discharged.

 

9. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH) (‘PPSA’)

9.1 Capitalised terms in this clause have the same meaning as given to them in the PPSA.

9.2 The Customer and CELSA acknowledge and agree that these Terms and Conditions constitute a Security Agreement and give rise to a Purchase Money Security Interest in favour of CELSA over all present and after acquired Products supplied by CELSA and their proceeds to secure all moneys owing to CELSA now and in the future in respect of the supply of Products.

9.3 CELSA and the Customer acknowledge that CELSA, as Secured Party, is entitled to register its interest in the Products supplied or to be supplied to the Customer, as Grantor, under these terms and Conditions on the PPSA Register as Collateral.

9.4 The Customer undertakes to provide any information that CELSA may

reasonably require to enable CELSA to perfect and maintain the perfection of CELSA’s Security Interest (including by registration of a Financing Statement).

9.5 The Customer undertakes to immediately notify CELSA in writing of any

changes in the Customer’s name and/or any other change in the Customer’s

business details (including, but not limited to, changes in the Customer’s

address, facsimile number, trading name, or business practice).

9.6 To the extent permitted by law, the Customer:

a. waives its right to receive notification of or a copy of any Verification

Statement in respect of any Financing Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to CELSA;

b. agrees that where CELSA has rights in addition to, or existing separately

from those in Chapter 4 of the PPSA, those rights will continue to apply and in particular, will not be limited by Part 4.3 in Chapter 4;

c. agrees that the rights of the Customer as a debtor under Sections 130, 132, 135 and 137 shall not apply to these Terms and Conditions and are hereby waived by the Customer;

d. without limiting paragraph c above, agrees to waive its right to do any of the following under the PPSA:

i. receive notice of removal of Accession under section 95;

ii. receive notice of an intention to seize Collateral under section 123;

iii. object to the purchase of the Collateral by the Secured Party under section 129;

iv. receive notice of disposal of Collateral under section 130;

v. receive a Statement of Account if there is no disposal under section 130(4);

vi. receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to the other Secured Parties and whether Security Interests held by other Secured Parties have been discharged;

vii. receive notice of retention of Collateral under section 135;

viii. redeem the Collateral under section 142; and

ix. reinstate the Security Agreement under section 143; and

e. waives its rights to receive anything from CELSA under section 275 and

agrees not to make any request of CELSA under that section.

9.7 Without limiting clause 9.6e above, the Customer and CELSA agree that

neither party will disclose any information of the kind referred to in section

275(1) of the PPSA unless section 275(7) of the PPSA applies, in which case CELSA may disclose such information.

9.8 The Customer will indemnify CELSA on demand against all costs,

expenses and other charges incurred, expended or payable by CELSA

(including legal costs and expenses on a full indemnity basis) in relation to:

a. the registration, amendment or discharge, by or on behalf of CELSA, of a Financing Statement or Financing Change Statement in connection with these Terms and Conditions; and

b. enforcement or attempted enforcement of any Security Interest granted to CELSA by the Customer.

9.9 The Customer shall not allow Security Interests to be created or registered over the Products in priority to the Security Interest(s) held by CELSA.

9.10 For purposes of this clause ‘Products’ means goods, equipment or

materials supplied by CELSA to the Customer from time to time, provided that:

a. (but solely for the purpose of the application of the PPSA) where the

Products supplied are the Customer’s inventory, then all references to

Products in these Terms and Conditions shall in respect of those products, be read as references to inventory for so long as they are held as inventory; and

b. where the Products supplied are not, or are no longer held as, the

Customer’s inventory, then all references to Products in these Terms and

Conditions shall, in respect of those Products mean the products, described

in any one or more Order, order form, packing slip or invoice (or its equivalent, whatever called) prepared by CELSA and relating to those products, on the basis that each such Order, order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Customer, incorporated in, and form part of these Terms and Conditions, and unless the context requires otherwise, includes all proceeds of such Products and any product or mass which the Products subsequently become part of.

 

9A. COMPETITION AND CONSUMER ACT 2010 (CTH) (‘CCA’)

9A.1 Where the Terms and Conditions would otherwise by subject to the CCA, the Customer agrees that they are acquiring the Products for business

purposes and that the CCA does not apply to the supply of Products under the current Terms and Conditions.

9A.2 If the Customer is a consumer as defined in section 4B of the CCA, and the Customer has not contracted out of the CCA under sub clause 9A.1 above, nothing in these Terms and Conditions will limit any rights the Customer may have under the CCA.

 

10. WARRANTY

10.1 CELSA warrants that, on delivery and for a period of twelve (12) months thereafter (the “Warranty Period”), the Products will be of merchantable quality, free from faulty design, materials, or workmanship, and will conform to the manufacturer's specifications (if any).

10.2 CELSA shall at CELSA’s option make good either by repair or by

replacement, within a reasonable time after notification by the Customer

pursuant to paragraph c below, defects that appear in the Products arising

from faulty design, faulty materials, faulty workmanship or non-compliance

with manufacturer’s specifications (if any) provided always that:

a. the Products have been properly handled and used and have been installed, operated and maintained in accordance with CELSA’s instructions and specifications;

b. any defect caused by or resulting from fair wear and tear, replacement of

consumables, impact, or repair, alteration or use non-conforming with or

beyond CELSA’s instructions and specifications, or modification in any way by any person other than CELSA shall not be covered under the Warranty Period;

c. the Customer notifies CELSA of the alleged defect(s) in writing within seven (7) days of its discovery and within the Warranty Period; and

d. the Customer has otherwise complied with all obligations under the Terms and Conditions.

10.3 Where the Customer has notified CELSA in writing of an alleged defect

in accordance with clause 10.2, CELSA will, at CELSA’s sole discretion, either:

a. replace or repair on an EXW (Incoterms 2010) delivery basis; or

b. pay to the Customer the cost of replacing or repairing, that part or all of

Products that are defective on an EXW (Incoterms 2010) delivery basis

(excluding any removal, installation or transportation costs, unless otherwise agreed in writing by CELSA).

10.4 Customer’s failure to notify CELSA pursuant to clause 10.2 above within said period shall constitute acknowledgement of compliance of delivery with the present Terms and Conditions and the Customer shall then be deemed to have waived any such claim in relation to said delivery.

10.5 To the full extent permitted by law, the Customer hereby waives all other warranties, guaranties, conditions or claims whether express or implied arising by law or otherwise and whether or not occasioned by CELSA’s negligence. The warranty provided for in the present clause shall not be extended, altered or varied except by a written instrument signed by CELSA and the Customer. In the event the provision relieving CELSA from liability for its negligence be for any reason held ineffective, the remainder of the present paragraph shall remain in full force and effect.

 

11. EXCLUSIONS FROM WARRANTIES

11.1 The foregoing warranty shall only apply in respect of claims as a result of defects in the Products or parts thereof which are notified and apparent within the Warranty Period.

11.2 The extent of CELSA’s warranty under clause 10 above as to defects in material or workmanship or the processes of manufacture is limited to the

repair of such defects or to the repair or replacement (by a similar item free

from the defect in question) of any accessory, equipment or part which is

defective.

11.3 CELSA shall not be liable in any way, whether in contract, tort, under

statute or otherwise, for any failure of the Products to comply with the

warranties given under clause 10 unless the Customer can prove, to CELSA’s satisfaction, that the Customer used and operated the Products strictly in accordance with CELSA’s instructions (which the Customer will receive or must request and receive before initial use of the Products).

11.4 The Customer acknowledges that:

a. after the manufacture of Products, CELSA shall not be obliged to make any change to the Products equivalent to any modification in design or

specification made to any similar products made by CELSA; and

b. CELSA shall not be responsible for the replacement of consumable items

used in operation of the Products.

 

12. DISCLAIMER OF DAMAGES

In no event will CELSA be liable to buyer or any other party for any type of

special, consequential, indirect, incidental, exemplary, or punitive damages,

whether such damages arise out of or are a result of breach of contract,

warranty, tort (including negligence), strict liability, or otherwise, and

regardless of whether the contract would fail of its essential purpose. Such

damages include but are not limited to loss of profits or revenues, loss of use of the equipment or associated equipment and software, cost of substitute equipment or software, facilities, down time costs, increased construction costs, damage to reputation, loss of customers, or claims of Buyer's customers or contractors for such damages. Buyer may not transfer, assign, or lease the equipment or software sold or licensed under this contract to any third party without first securing from them the protection afforded to CELSA in this section.

 

13. EXCLUSIONS AND LIMITATION OF LIABILITY

13.1 CELSA’s total liability under or in connection with the Order shall be

limited to the total Price payable under the Order.

13.2 CELSA limits its liability:

a. to the supply of or repair of the Products in respect of which the breach

occurred; or b. to the payment of cost of supplying the Products again in respect of which the breach occurred.

13.3 To the full extent permitted by law, CELSA hereby expressly excludes:

a. all conditions and warranties implied by custom, the general law or statute; and

b. all liability for loss of profit, loss of revenue, loss of contract, loss of or denial of opportunity, loss of use, loss of production, loss of goodwill, loss of reputation, or for any consequential, special or indirect losses, expenses,

damages and costs.

13.4 In this clause 'liability' means any liability, including:

a. liability for breach of contract; and

b. any other liability, including statutory and tortious liability (including

negligence), indemnity and liability for infringement of Intellectual Property

rights.

13.5 The present clause 13 shall apply notwithstanding any other provision of an Order, except where to do so would contravene any statute or cause any part of the Order to be void.

 

14. PURPOSE OF PRODUCTS

14.1 The Customer acknowledges it relies solely on its own skill and

judgement in all respects and in particular:

a. in its decision to purchase Products;

b. that the Products are fit for the purpose for which they are being acquired.

14.2 It is the Customer’s sole responsibility to ensure that the Products are

used for the purposes for which they were designed to be used.

 

15. FORCE MAJEURE

15.1 CELSA shall not be held liable for any delay or failure in performance of any part of the present Terms and Conditions to the extent that such delay or failure is caused by, without limitation: accidental damage to its equipment or machinery; acts of God or of public enemy; blockade, rebellion, insurrection, riot or other civil unrest or violence or sabotage; weather conditions, fire, storm, cyclone, flood, earthquake, or other natural disaster; terrorism, bomb or explosion; war; illness or epidemic; quarantine restrictions; industrial or labour dispute, labour shortage; transportation embargo; act or omission (including laws, regulations, disapprovals or failures to approve) of any other person (including a government, government agency, a supplier or a sub-contractor).

15.2 If any such condition occurs, and CELSA is delayed or unable to perform, CELSA shall give immediate notice to the Customer, and shall be excused from performance under the present Terms and Conditions for the entire duration of such condition.

15.3 If such condition continues for more than ninety (90) days, CELSA shall

have the right to terminate the affected Order or Orders with immediate effect by giving written notice to the Customer.

15.4 If CELSA terminates an Order under clause 15.3:

a. due to a Force Majeure event as described in 15.1 affecting the Customer, the Customer must pay CELSA all costs incurred or damages suffered by CELSA in connection with the Order (including without limitation any charges, duties, taxes, expenses, design costs, purchasing costs or other outgoings paid or incurred);

b. the rights and obligations of the parties under that Order will cease; and

c. the accrued rights or remedies of the parties will not be affected.

 

16. EXPORT CONTROL

If the Products are manufactured outside Australia and licensed by a government for use in Australia, the Customer must not export, or permit the exportation of, those Products without CELSA’s prior written approval.

 

17. CUSTOMER’S DEFAULT

17.1 If: a. the Customer fails to make any payment required under the present Terms and Conditions, including interests and any other amount owing to CELSA, on the due date;

b. the Customer breaches any other provision of an Order or of the present

Terms and Conditions and fails to remedy the breach within seven (7) days

after receiving written notice requiring it to do so; or

c. any step is taken to appoint a receiver, a receiver and manager, a trustee

in bankruptcy, a liquidator, a provisional liquidator, an administrator or other

like the person to part or all of the Customer's assets or business, CELSA may:

i. declare the entire sum remaining unpaid under the present Terms and

Conditions to immediately become due and payable; or

ii. require the Customer to pay in advance of delivery or completion; or

ii. suspend or cease performance until all amounts owing to CELSA are paid

in full; or

iii. request the Customer to immediately return to CELSA any Product it does not own; or

iv. enter the premises in which the Products are stored and use any reasonable means of force to retake possession of them; and

v. resell or otherwise dispose of all or part of the Products without notice and without reference to the Customer.

17.2 This clause shall not limit any other right CELSA may have to recover damages for breach of contract.

 

18. INTELLECTUAL PROPERTY

18.1 CELSA and the Customer agree that all Confidential Information:

a. may only be used by CELSA for the purpose of supplying and delivering the Products;

b. must be kept confidential by both parties;

c. may be disclosed only to those persons who have a need to know; and

d. any Confidential Information supplied by one party to another party must be returned to the party making the request.

18.2 All Intellectual Property created, disclosed or used by CELSA in the supply of the Products is and at all times shall remain the property of CELSA.

18.3 The Customer must promptly notify CELSA in writing of any claim or action alleging that any of the Products infringes any Intellectual Property right ('Intellectual Property Claim').

18.4 Except for any Intellectual Property Claim involving use of part or all of the Products:

a. in combination with other goods not supplied by CELSA; or

b. as part of a process or in testing or experimenting other than with CELSA’s approval, CELSA must:

c. defend any Intellectual Property Claim at its expense; and

d. subject to clause 13, pay all costs and damages awarded against the Customer in the Intellectual Property Claim. CELSA will have the sole control and carriage of the defense of the Intellectual Property Claim and all negotiations for its settlement or compromise.

18.5 The Customer:

a. shall not incur any costs or expenses on CELSA’s behalf without its prior written approval;

b. shall not make any admission or statement that may be prejudicial to the defense the Intellectual Property Claim; and

c. shall indemnify CELSA against all expenses, losses, damages and costs (on the higher of a full indemnity basis and a solicitor and own client basis, and whether incurred by or awarded against CELSA) that CELSA may sustain or incur as a result, whether directly or indirectly, of CELSA’s compliance with any design specifications or instructions provided or required by the Customer.

18.6 The Customer must not:

a. reverse engineer the Products; and

b. design or manufacture products that compete with the Products.

 

19. NO RESPONSIBILITY FOR GRATUITOUS INFORMATION

Except for fraudulent misrepresentations, CELSA is not responsible for any information, assistance, or advice given to Buyer if such information, assistance, or advice was not required by this contract.

 

20. DISPUTE RESOLUTION

20.1 A party must not start proceedings under 20.3 below (except proceedings seeking interlocutory relief) in respect of a dispute arising out of an Order of Products ('Dispute') unless it has complied with this clause. A party claiming that a Dispute has arisen must immediately notify in writing the other party giving details of the Dispute.

20.2 During the ten (10) day period after a notice is given under clause 20.1 (or such longer period as agreed in writing by the parties) ('Initial Period'), the parties must use their best efforts and negotiate in good faith in order to resolve the Dispute. If the parties fail to resolve the Dispute within that time, either party may start proceedings pursuant to the provisions of clause 20.3 below.

20.3 All Disputes arising out of or in connection with the present Terms and Conditions shall be settled under the Rules for the Conduct of Commercial Arbitration of the Institute of Arbitrators and Mediators Australia by one or more arbitrators appointed in accordance with the said Rules. The arbitration proceedings shall be held in Melbourne, Victoria, Australia.

20.4 Any communication made for the purposes of this clause: a. must be kept confidential; and b. may not be used except to attempt to resolve the Dispute.

20.5 Each party must bear its own costs in complying with this clause.

20.6 After the Initial Period, a party that has complied with clauses 20.1 and 20.2 in relation to a Dispute may terminate that dispute resolution process by giving written notice to the other party.

20.7 Failing satisfactory resolution of a Dispute in accordance with clauses 20.1 to 20.3 above, either party may proceed to litigation, in which case the Dispute shall be submitted to the exclusive jurisdiction of the courts of Victoria, but only if and to the extent that such party has previously complied with the provisions of clauses 20.1 to 20.3 above.

20.8 If in relation to a Dispute a party breaches any provision of clauses 20.1 and 20.2, the other party needs not comply with those clauses in relation to that Dispute.

 

21. APPLICABLE LAW

21.1 The present Terms and Conditions shall be construed and governed in accordance with the laws of Victoria, Australia. Subject to the provisions of clause 20 above, all Disputes arising out of or in connection with an Order shall be submitted to the exclusive jurisdiction of the courts of Victoria.

21.2 The United Nations Convention on Contracts for the International Sale of Goods (1980) does not apply to any Order.

 

22. SEVERABILITY

The parties agree:

a. to apply a construction of each provision of each Order that creates a legal and enforceable provision;

b. that any illegal or unenforceable provision will be severed from the present Terms and Conditions and will not affect the validity and continued operation of the remaining provisions; and

c. to use their best endeavors to replace any severed provision with a provision having a commercial import as close as possible to the severed provision.

 

23. ENTIRE AGREEMENT

The present Terms and Conditions:

a. shall constitute the entire agreement between the parties as to the supply of the Products that are the subject of an Order;

b. shall supersede:

i. all prior written or oral negotiations, arrangements, agreements, representations or undertakings between the parties in connection with that subject matter;

ii. any terms and conditions that, despite clause 3.2, the Customer attempts to impose in relation to that subject matter; and

c. shall be binding upon and inure to the benefit of CELSA and the Customer and their respective successors and permitted assigns.

 

24. NOTICES

24.1 All notices required to be given under the Terms and Conditions in relation to the Products must be sent to the address of the recipient as set out in the Order for those Products (or any other address notified in writing by the recipient in accordance with the present clause).

24.2 Any notice will be deemed to have been duly given, if sent by mail, five (5) business days after posting, if delivered by hand, on signature of receipt acknowledging delivery and, if sent by facsimile transmission, on the generation of an acknowledgment that the transmission has been successfully completed.