Terms and Conditions of Supply

1.Interpretation

1.1  In these terms and conditions, these meanings apply unless the contrary intention appears:

‘Australian PPSA’ means the Australian Personal Property Securities Act 2009 (Cth).

‘Australian PPSR’ means the register of security interests established and maintained under the Australian PPSA.

‘Consumer Law’ means, as applicable, the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) or the New Zealand Fair Trading Act 1986, Consumer Guarantees Act 1993, and Part 3 of the Contract and Commercial Law Act 2017 (New Zealand Consumer Law).

‘Contract’ means a contract for the supply of Goods and/or Services by Royans to the Customer.

‘Consequential Loss’ means any Loss suffered or incurred by a party as a result of a breach of a Contract by the other party which does not arise naturally or directly (that is, according to the usual course of things), from the breach of a Contract or other wrongful act or omission giving rise to the relevant liability, including loss of profits or goodwill or any payment made or due to any third party and any loss or damage caused by delay in the supply of Goods or Services.

‘Customer’ means any natural person, company, partnership or other entity which enters into a Contract with Royans.

‘Event of Default’ has the meaning given to that term in clause 9.1.

‘Force Majeure Event’ means any act of God, flood, fire, lightning, storm, tempest, rain, enemy hostilities, strikes, lock-out or other industrial disturbances, riots, laws, rules or regulations, inability to obtain equipment or material or any other cause outside the control of Royans.

‘Goods’ means all present and after-acquired goods, including automotive and industrial parts, consumables tools, accessories and equipment supplied by Royans to the Customer under a Contract.

‘GST Law’ means, as applicable, the Australian A New Tax System (Goods and Services Tax) Act 1999 (Cth) or the New Zealand Goods and Services Tax Act 1985.

‘Guarantor’ means a guarantor of the Customer who has entered into a Personal Guarantee and Indemnity Agreement.

‘Loss’ means all damage, loss, costs claim, liability, obligation or expense (including legal costs and expenses of any kind).

‘New Zealand PPSA’ means the Personal Property Securities Act 1999.

‘New Zealand PPSR’ means the register of security interests established and maintained under the New Zealand PPSR.

‘Personal Guarantee and Indemnity Agreement’ means the ‘personal guarantee and indemnity agreement’ forming part of the Application for Trade Credit Terms.

‘Personnel’ mean all employees, officers, agents and contractors.

‘Price’ means for the supply of Goods and Services in Australia the amount in Australian dollars and for the supply of Goods and Services in New Zealand the amount in New Zealand dollars, in each case inclusive of any GST, payable by the Customer to Royans in respect of the supply of Goods or Services, including any charges for delivery, freight and transportation as notified by Royans to the Customer.

‘Related Bodies Corporate’ has the meaning given to that term in section 9 of the Australian Corporations Act 2001 (Cth) or section 2(3) of the New Zealand Companies Act 1993, as applicable.

‘Royans’ means Royans Group Bidco Pty Ltd ACN 638 670 470 of Suite 2, Level 33, 2 Chifley Square, Sydney NSW 2000 and each of its Related Bodies Corporate, successors and assigns.

‘Services’ means the services supplied by Royans to the Customer under a Contract.

1.2  In these terms and conditions:

(a)   a reference to a document (including these terms and conditions) includes any variation or replacement of it;

(b)   the singular includes the plural and vice versa;

(c)   a reference to a person (including a party to a Contract) includes a firm, a body corporate, an unincorporated association or an authority, and includes the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;

(d)   a reference to any legislation or to any provision of any legislation includes any enactment, modification, consolidation or re-enactment of it, any legislative provision substituted for it and all regulations and statutory instruments issued under it; and

(e)   headings are inserted for convenience and do not affect interpretation of these terms and conditions.

2.     Formation of Contract

2.1  A Contract is entered into between Royans and the Customer when Royans accepts, either in writing or by conduct, an order which a Customer places for Goods and/or Services. Once accepted by Royans, a Contract cannot be cancelled or varied by the Customer without the prior written consent of Royans.

2.2  Placement of an order by the Customer constitutes acceptance of these terms and conditions and these terms and conditions are incorporated into each Contract.

2.3  All orders forming the basis of a Contract must be in writing and include:

(a)   details of the Customer;

(b)   a description of the requested Goods and/or Services to be provided by Royans;

(c)   the quantity of Goods and/or Services required by the Customer; and

(d)   delivery details including address.

2.4    A Contract (including these terms and conditions) constitutes the only agreement governing the supply of the Goods and Services to which it relates, and supersedes all previous communications and negotiations and agreements in connection with the supply of those Goods and Services.

2.5  Except as specifically provided in these terms and conditions, any terms in respect of the supply of Goods and Services contained in or relating to any other documents, including any of the Customer’s documents (even if they purport to provide that they prevail), are excluded. By accepting the Goods and Services, the Customer acknowledges that these terms and conditions prevail over any qualification or condition purported to be imposed in any such other documents.

2.6  Royans may vary these terms and conditions from time to time by providing to the Customer reasonable notice of the variation, and the varied terms and conditions are incorporated into each Contract in accordance with the terms of the notice. If the Customer does not agree to the varied terms, it may contact Royans and the parties shall use reasonable endeavours to reach an agreement concerning the proposed variation. No variation of a Contract is binding unless expressly agreed in writing by Royans.

3.     Invoicing and Payment

3.1  All invoices issued by Royans will include details of the Price and any other costs and charges payable by the Customer in accordance with a Contract, including (where relevant) all reasonable charges associated with delivery of the Goods.

3.2  Unless otherwise agreed by Royans in writing, payment of the Price must be made within 14 days of the day on which the Goods and/or Services are supplied. Time is of the essence in relation to punctual payment. 

3.3  Payments must be made in immediately available funds, without set-off, counterclaim or deduction.

3.4  If payment is not made by the due date, then:

(a)     if the Customer is in Australia, the amount due for payment attracts interest from the due date until payment, at the rate fixed from time to time under the Penalty Interest Rates Act 1983 (Vic), calculated daily and compounding monthly; or

(b)     if the Customer is in New Zealand, the amount due for payment attracts interest from the due date until payment, at Royan’s bank overdraft rate plus 5%, calculated daily and compounding monthly..

3.5  The Customer will pay all costs and expenses incurred by Royans, its advisers, agents and any other person, in respect of any action instituted or considered against the Customer, whether for debt, possession of Goods or otherwise.

3.6  Royans reserves the right to change the Price for Goods or Services in its absolute discretion.

4.     GST

4.1  Any reference in this clause 4 to a term defined or used in the GST Law is, unless the context indicates otherwise, is a reference to that term as defined in the GST Law.

4.2  Unless expressly stated otherwise, all amounts stated to be payable by the Customer under any Contract are exclusive of GST.

4.3  If GST is imposed on any supply made under or in accordance with any Contract, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with the Contract, subject to the provision of a tax invoice by the supplier to the recipient.

5      Supply and Delivery

5.1  Royans may

(a)   accept or decline any order in whole or in part;

(b)   if Royans has at any time reasonable doubts as to the solvency of the Customer, agree to accept any order only on conditions stipulated by Royans; or

(c)   withhold supply of any Goods or Services.

5.2  Royans may deliver any Goods or Services to the Customer by instalments and this does not entitle the Customer:

(a)   to terminate or cancel a Contract; or

(b)   to claim any loss or damage howsoever arising.

5.3  The Customer is liable to pay Royans any charges for delivery, freight and transportation, and such payment must be made as part of the Price. Delivery of the Goods and Services will take place at Royans’ premises. In the event that Royans agrees to supply the Goods or Services to the Customer at the Customer’s address or to some other place nominated by the Customer, Royans is not liable, whether in tort or contract or otherwise, for any loss or damage to the Goods following delivery of the Goods, nor any loss or damage arising from a delay in delivering the Goods suffered by the Customer.

5.4  The Customer is not relived of any obligation to accept or pay for Goods or Services because of any delay in delivery.

5.5  The Customer indemnifies Royans against any loss, damage or expense suffered or incurred by Royans relating to damage to a third party’s premises or personal injury in making supply of Goods or Services to the Customer, except where Royans is negligent.

6      Ownership and risk

6.1  The Customer agrees that Royans may, in its absolute discretion, take possession of any parts reclaimed from the Customer’s vehicle whilst supplying the Services and grants Royans full legal and beneficial title of any parts reclaimed.

6.2  Legal and beneficial title to any Goods supplied by Royans is retained by Royans and does not pass to the Customer, and the Customer holds the Goods as Royans’ fiduciary, agent and bailee, until the Customer pays Royans in full all moneys owing or payable by the Customer to Royans on any account (including in respect of the purchase of the Goods) and any payments have been cleared, at which time title to the Goods will pass to the Customer.

6.3  Until the payments are received by Royans and title to the Goods has passed to the Customer in accordance with clause 6.1 above:

(a)   the Customer has custody of the Goods and holds them as fiduciary, agent and bailee of Royans;

(b)   the Customer must not encumber the Goods in any way;

(c)   the Customer may sell the Goods but only at arm’s length, in the ordinary course of business, on market terms, and only as the fiduciary, agent and bailee of Royans (and in that regard, the Customer has no right to bind and Royans  will not be bound by any liability to a third party by contract or otherwise);

(d)   Royans may inspect the Goods; and

(e)   if an Event of Default occurs, Royans may repossess the Goods and resell them and apply the proceeds of sale to any amount owing or payable by the Customer to Royans on any account and return any excess proceeds of sale to the Customer (without prejudice to any other rights of Royans).

6.4    Until all amounts owing by the Customer have been paid in full, the Customer must hold the proceeds it receives from any sale of the Goods on trust for Royans. The Customer must place all proceeds from the sale of the Goods in an ADI Account (as that term is defined in the Australian PPSA) if the Customer is in Australia, or a separate bank account if the Customer is in New Zealand, but in either case the proceeds must be separate from the Customer’s own monies and the Customer must not allow any person to have control of, or grant a security interest over the proceeds or the accounts in which they are held. The Customer must make immediate payment to Royans (from the accounts in which the proceeds are held) of all amounts which may be owing to Royans.

6.5    Until all amounts owing by the Customer have been paid in full, the Customer may, subject to clause 6.3, take possession of the Goods and hold them on trust for Royans. The Customer must store the Goods in such a manner that they are readily distinguishable from the other products held by the Customer and so that it is clear the Goods are the property of Royans.

6.6    If the Customer makes a payment to Royans at any time, whether in connection with a Contract or otherwise, Royans may, in its absolute discretion, apply that payment to first satisfy obligations that are not secured and then obligations that are secured in the order in which those obligations were incurred.

6.7  For the purposes of enabling Royans to inspect the Goods or retake possession of the Goods, Royans and its Personnel are irrevocably authorised to enter (forcibly, if necessary) into any premises owned or occupied by the Customer on or in which the Goods may be located from time to time, and to recover and do all things necessary to recover the Goods, and the Customer appoints Royans as its agent to enter any premises not owned by the Customer and on or in which the Goods may be located from time to time.

6.8  The Customer:

(a)   agrees that Royans is not liable for any loss, damage, expense or cost whatsoever suffered or incurred by the Customer as a result of Royans or its Personnel exercising the powers conferred on Royans under clause 6.6 above; and

(b)   releases Royans and its Personnel from any claim or action whatsoever if Royans takes possession of goods owned by the Customer in the reasonable belief that such goods are the Goods. Upon receipt of evidence from the Customer which satisfies Royans that the relevant goods are not the Goods, Royans shall make the goods available for collection by the Customer.

6.9  Notwithstanding clauses 6.1 and 6.2 above, the Goods are at the sole risk of the Customer from the time the Goods are delivered to the Customer or its agent. The Customer must properly store, secure and insure the Goods from such time as the Goods are at the Customer’s risk. Royans is not liable to Customer for any loss or damage or deterioration of the Goods after delivery, even if Royans arranges freight. The Customer shall be responsible for taking out insurance in relation to the Goods and their delivery.

6.10    Where the Goods are part of a product line that is also comprised of goods that are owned by the Customer (for example, because other suppliers also supply the Customer with that product line) the Customer will not deal with the Goods in any way that is inconsistent with Royans’ ownership of the Goods and acknowledges the applicability of the following legal principles if, at the time when Royans seeks to recover the Goods, the Goods have nevertheless been commingled with other goods in the same product line:

(a)   if there is sufficient stock of the product line to satisfy in full the interests of both Royans and the Customer, Royans and the Customer are tenants in common of the stock in that product line in portion to their respective contributions; or

(b)   if the residual stock of the product line is insufficient to satisfy in full the interests of both Royans and the Customer, as an incident of the Customer’s obligations as fiduciary, agent and bailee of the Goods, the Customer is presumed to have disposed of that part of the product line that is comprised of its own goods prior to disposing of the Goods.

7      The PPSA

7.1  The Customer grants a security interest (as defined under the Australia PPSA) and a purchase money security interest (PMSI) (as defined under the New Zealand PPSA) in all Goods (together with the proceeds of sale of all Goods) to secure payment by the Customer in full of all moneys owing or payable by the Customer to Royans. The Customer consents to Royans affecting a registration on the Australian PPSR or New Zealand PPSR (or both) (in any manner Royans considers appropriate) in relation to any security interest (including a PMSI) contemplated by a Contract (and these terms and conditions) and the Customer agrees to provide all assistance reasonably required to facilitate this.

7.2    The Customer agrees to do all things necessary and execute all documents reasonably required to register the security interests granted by the Customer under a Contract and to ensure that Royans acquires perfected security interests under the PPSA.

7.3    The Customer will, upon demand, pay all of Royans’ expenses and legal costs (on a solicitor/agent/client basis) in relation to or in connection with the registration of Royans’ security interests and all other costs associated with protection and enforcement of Royans’ security interests created by a Contract or by undertaking an audit under the provisions of the PPSA, or the repossession of the Goods the subject of a Contract or the exercise, enforcement or preservation of any right or interest under a Contract.

7.4    To the extent permitted by the PPSA, a Contract excludes any provisions of the PPSA which may be excluded in Royans’ discretion and which would otherwise confer rights on the Customer.

7.5    The Customer must not change its name, Australian or New Zealand Business Number or Australian or New Zealand Company Number or any other details required on the Australian PPSR or New Zealand PPSR without first notifying Royans.

7.6  The Customer waives any rights to receive notice of any verification statement issued under the PPSA.

7.7    For the purpose of the Australian PPSA, the Customer hereby waives its rights to receive notices, information or statements (as the case may be) under sections 95, 96, 118, 120, 121(4), 123(2), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA and the Customer’s rights as a grantor and/or a customer under section 142 and 143 of the PPSA.

7.8    For the purpose of the New Zealand PPSA, and without limiting clause 7.4, the Customer hereby waives its rights under and agrees to contract out of sections 114(1)(a), 125, 126, 127, 131, 133, 134, and further agrees to waive and contract out of it rights to receive notices, information or statements (as the case may be) under sections 116, 120(2), 121, 129.

8      Customer’s warranties

8.1  By entering into a Contract, the Customer warrants that:

(a)   it does not rely on the skill or judgment of Royans as to the suitability of any Goods or Services for a particular purpose, unless Royans acknowledges in writing that the Goods or Services are fit for a particular purpose; and

(b)   any sample, catalogue or brochure shown to the Customer is solely for the purpose of enabling the Customer to judge the normal commercial quality and finish of any Goods supplied and not so as to constitute a sale by sample or a sale by description, nor does Royans warrant or agree that the bulk of any Goods sold conform with any such sample or description.

8.2  The Customer warrants that it has the power to enter into a Contract and any contract with Royans and perform its obligations under the Contract.

8.3  If the Customer is a trustee of a trust (whether disclosed to Royans or not), the Customer enters into a Contract in both its capacity as trustee and in its personal capacity, has the right to be indemnified out of trust assets and has the power under the trust deed to sign a Contract.

8.4  If the Customer is a partner in a partnership (whether disclosed to Royans or not) all of the partners have signed a Contract as well as the Personal Guarantee and Indemnity Agreement.

9      Cancellation

9.1    The Customer may, by giving 30 days written notice to Royans, cancel a Contract for Services.

9.2    If the Customer cancels a Contract for Services the Customer must pay Royans the amount which Royans is entitled to be paid under the Contract for Service for works completed up to and including the date of cancellation.

9.3    If the vehicle being repaired had major damage that required structural repairs and those repairs were not completed by Royans prior to the Contract for Services being cancelled by the Customer, the Customer hereby agrees and acknowledges that:

(a)     where Royans have recommended and advised that the vehicle(s) require structural repairs to restore their structural integrity and to ensure their safe operation and roadworthiness, the vehicle poses significant risks to the driver, passengers, and other road users;

(b)     any vehicle(s) removed from Royans premises without the recommended structural repairs carried out are not roadworthy or fit for the purpose for which the vehicle(s) are intended to be used;

(c)     by removing the vehicle(s) without having any of the structural repairs recommended by Royans completed, the Customer solely and fully assumes any and all risks, responsibilities and liability (however so arising) for any loss, damages, costs, expenses, claims and proceedings (in each case of any kind whatsoever) directly or indirectly relating to the use or the operation of the vehicle(s) in their current condition, including for any injuries to person or to property, accidents, or fatalities that may result from using or operating the vehicle(s) in their current condition;

(d)     the Customer expressly and irrevocably waives (and will ensure that any of its representatives, affiliates and related companies will waive) any and all claims, demands, or right of action (of any kind whatsoever) that it may have now or in the future against Royans (or any of Royans‘ employees, officers, directors, representatives, affiliates, shareholders or related companies) directly or indirectly relating to the use or the operation of the vehicle(s) in their current condition, including any injuries to person or to property, accidents, or fatalities that may result from using or operating the Vehicle(s) in their current condition; and

(e)     to the maximum extent permitted by law, indemnify and hold Royans and their employees, officers, directors, representatives, affiliates, shareholders and related companies harmless against any liability, loss, costs (including legal costs), expenses, damages, claims and proceedings made by any person and of any kind whatsoever directly or indirectly relating to the use or the operation of the vehicle(s) in their current condition, including any injuries to person or to property, accidents, or fatalities that may result from using or operating the Vehicle(s) in their current condition.

10   Customer’s default and termination

10.1    If:

(a)   the Customer does not pay an amount owing to Royans when due in the manner required;

(b)   the Customer breaches any term of a Contract or of the Application For Trade Credit Terms;

(c)   any representation or warranty made by the Customer to Royans is not true when made;

(d)   the Customer ceases to carry on business;

(e)   the Customer disposes of, or threatens to dispose of, the whole or any material part of its assets, operations or business other than in the ordinary course of business;

(f)    there is a change in the effective control of the Customer;

(g)   the Customer ceases to be able to pay its debts as they become due;

(h)   the Customer or any of its officers is or becomes insolvent, bankrupt, in liquidation, in administration, or makes any arrangement with or assignment for the benefit of its creditors, or has a receiver or receiver and manager or similar officer appointed in respect of any of its property; or,

(i)    any of the matters set out in clauses 9.1(a) to 9.1(h) above is likely to happen in the opinion of Royans’ Credit Manager or equivalent officer,

(each an ‘Event of Default’), then Royans may do one or more of the following:

(j)    require immediate payment of all amounts owing by the Customer to Royans;

(k)   immediately without notice take any steps to repossess the Goods and resell them under clauses 6 and 7 above;

(l)    immediately without notice terminate any Contract between Royans and the Customer and any credit facility extended to the Customer;

(m)  charge the Customer interest on any amount owing by the Customer to Royans:

(i) if the Customer is in Australia, at the rate fixed from time to time under the Penalty Interest Rates Act 1983 (Vic), calculating daily and compounding monthly, from the due date until the date of payment in full; or

(ii) if the Customer is in New Zealand, at Royan’s bank overdraft rate plus 5%, calculating daily and compounding monthly; add to the Customer’s account and require immediate payment of all expenses incurred as a consequence of the actions taken by Royans to recover amounts owing by the Customer to Royans; and

(n)   charge a monthly service fee of $5.50 (inclusive of GST) on account statements (or a higher amount for account statements sent by post) and add to the Customer’s account that charge together with all charges incurred by Royans in respect of any cheques not met upon presentation.

10.2    A certificate signed by the Credit Manager of Royans stating the amount owing by the Customer to Royans is conclusive evidence of the Customer’s indebtedness to Royans in that amount.

10.3    Termination of a Contract or of a credit facility does not affect any accrued rights.

11   After termination

11.1    If a Contract is terminated, the Customer must, within 5 days after the date of the termination, pay Royans all amounts it owes Royans irrespective of whether those amounts have fallen due for payment and whether or not an invoice has been issued by Royans.

11.2    Clauses 1, 11, 13, 15, 16, 18, 19 and 20 continue to apply after termination of the Contract.

12   Indemnity

12.1    The Customer agrees to indemnify and keep indemnified Royans from and against all losses, claims, proceedings, damages, costs and expenses in respect of or arising directly or indirectly from:

(a)   the Goods or Services or their use;

(b)   any advice given by Royans or its Personnel to the Customer;

(c)   any breach by the Customer or its Personnel of a Contract; or

(d)   any negligent act or omission by the Customer or its Personnel.

13   Returns and faulty Goods

13.1    Any claim against Royans relating to non-delivery or delivery of damaged or incorrect Goods, must be made in writing within 7 days of the date of delivery. No claim may be made outside this period. All claims must be made in writing via email and refer to the invoice number and date and state the reason for the claim.

13.2    If the Customer gives Royans notice under clause 12.1, the Customer must preserve the Goods in the state in which they were delivered to the Customer and allow Royans (or its nominated agent) access to the Customer’s premises to inspect the Goods.

13.3  Royans will, at its option, replace Goods, supply equivalent Goods or pay the cost of acquiring equivalent Goods only where:

(a)   the Customer has given written notice under clause 12.1, complied with clause 12.2 and Royans is satisfied with Customer’s claim (acting reasonably);

(b)   if Royans elects to have the Goods returned, the Goods are returned to Royans (or as Royans directs) in the same condition as when first delivered to the Customer; and

(c)   returns are made in accordance with Royans returns procedures set out in clauses 12.4 to 12.9 below.

13.4    The following Goods cannot be returned for credit: Goods specially cut to length; Goods specifically made, plated or otherwise treated or purchased for the Customer; or Goods damaged or altered by the Customer or the Customer’s customer.

13.5    If Royans elects to accept any of the returned Goods, the acceptance is on such terms as Royans may determine (which may or may not involve a credit), and a re-stocking fee of not less than 5% of invoice value (inclusive of GST) shall apply. Royans may refuse to accept any returns or replace unused Goods.

13.6    Royans is not liable for any loss arising as a result of Royans’ failure to give credit or its delay in doing so.

13.7    Goods returned are at the Customer’s expense, and the Customer must pay all freight charges for the return of the Goods.

13.8    Goods returned must have been purchased from Royans, be in original packaging and saleable condition and the relevant invoice number supplied.

13.9    The provisions and tolerances contained in the standard specification to which Royans or its suppliers manufacture the Goods apply to all orders accepted, unless the parties agree to the contrary in writing.

14   Storage fees and abandonment

14.1  The Customer agrees to pay Royans storage fees at the applicable rate per day if the Customer does not take possession of their vehicle or Goods within 30 days notification from Royans that the vehicle or Goods are available for collection.

14.2  Pursuant to the provisions of the Uncollected Goods Act 1995 No68, any vehicles or Goods that are not collected within six (6) months of notification from Royans that the vehicle or Goods are available for collection will be considered uncollected goods and the Customer agrees that Royans may dispose of vehicle or Goods in accordance with the provisions of the Uncollected Goods Act 1995 No68.

14.3  Proceeds from the sale of the uncollected vehicle or Goods will be applied to the total sum owing by the Customer, including all of the costs associated with the:

(a)     storage of the vehicle or Goods;

(b)     disposal of the vehicle or Goods (including any towing or salvage costs incurred);

(c)     any other outstanding amounts owed by the Customer for repair or other treatment of the vehicle.

15   Exclusion and limitation of liability

15.1    Nothing in these terms and conditions operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law, New Zealand Consumer Law or any other statute where to do so would:

(a)   contravene that statute; or

(b)   cause any term of these terms and conditions or a Contract to be void,

(a ‘Non-excludable Obligation’).

15.2    Except in relation to Non-excludable Obligations, to the maximum extent permitted by law Royans expressly excludes all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute.

15.3    Except in relation to Non-excludable Obligations, to the maximum extent permitted by law:

(a)   Royans is not liable to the Customer or any other person for any direct or indirect loss, including without limitation Consequential Loss, damage to persons or property, and death or injury, caused by any act or omission, including without limitation negligent acts or omissions of Royans’ or its Personnel, except for any liability which cannot be excluded by law. The Customer indemnifies Royans against any claims made against Royans by any third party in respect of any such loss; and

(b)   Royans’ total liability to the Customer is limited to the lowest of the total Price paid by the Customer for the Goods the subject of the claim; or the Price payable under the Contract the subject of the claim; and the Price paid by the Customer in the 30 days preceding the relevant cause of action arising.

15.4    In relation to Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law or New Zealand Consumer Law (as applicable)), except for goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which Royans’ liability is not limited under these terms and conditions), Royans’ liability to the Customer for a failure to comply with any Non-excludable Obligation is limited to:

(a)   in the case of Services, the cost of supplying the Services again or payment of the cost of having the Services supplied again; and

(b)   in the case of Goods, the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired, or payment of the cost of replacing the Goods, supplying equivalent Goods or having the Goods repaired.

15.5    For the purpose of New Zealand Consumer Laws and without limiting anything else contained in this clause 13, to the extent the Customer is acquiring the Goods or Services for the purpose of the Customer’s business, the Customer and Royans agree and acknowledge that the Goods and Services are being supplied and acquired in trade (within the meaning of the Fair Trading Act 1986 (FTA) and Consumer Guarantees Act 1993 (CGA)), and the parties agree that the provisions of the CGA and sections 9, 12A and 13 of the FTA have been contracted out of and do not apply to the supply of the Goods and Services, and it is fair and reasonable to exclude their application. The Customer and Royans also agree and acknowledge that the implied warranties and conditions contained in the provisions of Part 3 of the Contract and Commercial Law Act 2017 will not apply to the supply of  the Goods and Services, and it is fair and reasonable to exclude their application.

15.6    Every exclusion or exemption from liability and every right, defence and immunity of whatsoever nature applicable to Royans or to which Royans is entitled under this clause 13 is also available and extends to protect the Personnel of Royans while acting in the course of or in connection with his employment or engagement, and for these purposes Royans is deemed to be acting as agent or trustee on behalf of and for the benefit of all its Personnel and all such persons are to that extent deemed be parties to the Contract.

15.7    The provisions of this clause 13 survive the termination of a Contract.

16   Force Majeure Event

16.1    Royans is not liable for any failure to perform or delay in performing its obligations under a Contract if that failure or delay is due to a Force Majeure Event.

17   Third Party Claims

17.1    In relation to any third party complaints or claims in respect of a Contract, the Customer must:

(a)   deal promptly with all third party complaints or claims relation to Goods;

(b)   promptly inform Royans of all material complaints or claims;

(c)   not admit liability on behalf of Royans in respect of any complaint or claim; and

(d)   not resolve or settle any complaint or claim in a way which may result in Royans incurring any liability (whether to the Customer, consumer or any other person).

17.2    In relation to all dealings with third parties, the Customer must:

(a)   not hold itself out, and procure that its Personnel do not hold out, to be associated with or employed by, Royans; and

(b)   use its best endeavours, and procure that its Personnel use their best endeavours, to maintain the reputation of Royans at all times.

18   Intellectual Property

18.1    The Customer’s purchase of Goods and/or Services does not confer on Customer any licence or assignment of any copyright, patent, design or trademark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Goods.

18.2    Royans makes no representation or warranty to the Customer of any kind, express or implied, that Goods will not infringe any intellectual property rights of a third party.

19   Changes to Customer’s business

19.1    The Customer undertakes to advise Royans within 7 days of any actual or proposed change in:-

(a)   the address of the business and the address at which the Goods will be located (if it differs to the business address);

(b)   the trading name of the Customer’s business;

(c)   the person(s), the directors, the trustee or the partnership conducting the Customer’s business; or

(d)   the status, or details of, the Customer’s registration for GST purposes or Australian or New Zealand Business Number or Australian or New Zealand Company Number.

19.2    Where such a change referred to in clause 17.1 occurs Royans may require a new application for a credit account to be made for Royans’ approval and the Customer will sign all documents and do all acts and things appropriate to such new application for a credit account (including the provision of new or additional guarantees (if required)).

20   Notices

20.1    A notice to be given by a party to another party under these terms and conditions must be in writing and sent to the address previously nominated by that party. All notices between Royans and the Customer are deemed to have been duly delivered if mailed in the ordinary course of post or sent by facsimile or email to the postal address or facsimile number or email address of Royans or the Customer respectively previously nominated by that party. Notices are deemed to have been delivered two (2) days after mailing, or upon completion of a facsimile transmission or email.

21   Governing law, jurisdiction and service of process

21.1    These terms and conditions and each Contract is governed by the law of the State of Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and the federal courts of Australia.

22   General

22.1    Any of Royans’ rights under a Contract can be waived by Royans only in writing. The waiver by Royans of any breach by the Customer of any term of a Contract does not prevent the subsequent enforcement of that term and is not be deemed a waiver of any other or subsequent breach.

22.2    Subject to clause 2.6 above, a Contract may not be amended, modified or varied except in writing signed by both parties.

22.3    Royans may exercise a right, remedy or power under or in connection with a Contract in any way Royans consider appropriate in its absolute discretion.

22.4    If Royans does not exercise a right, remedy or power at any time, this does not mean that Royans cannot exercise it later.

22.5    Royans’ rights, remedies and powers under a Contract are in addition to any rights, remedies and powers provided by law.

22.6    The Customer agrees to comply with all Royans’ reasonable requests in order to bind the Customer under a Contract and to show whether the Customer is complying with its obligations under a Contract.

22.7    If a term of a Contract (including these terms and conditions) is held to be void, voidable, invalid or unenforceable in whole or in part, it may be severed without affecting the validity and enforceability of the remaining terms.

22.8    Royans may in its absolute discretion engage or employ any person, sub-contractor or agent to provide any of the Services or to manufacture or deliver any of the Goods under these terms and conditions.

22.9    Royans may assign or otherwise deal with its rights, powers and remedies under these terms and conditions and a Contract without the prior consent or knowledge of the Customer. In this event, these terms and conditions and a Contract will remain in full force and effect both before and after the date of that assignment. The Customer may not assign or otherwise deal with these terms and conditions or a Contract or any or its rights, powers or remedies under these terms and conditions or a Contract without the prior written consent of Royans.

22.10 Each party must bear its own costs for the preparation and execution of these terms and conditions, a Contract.

22.11 Nothing in these terms and conditions creates any fiduciary relationship, nor any partnership, joint venture or agency relationship between Royans and the Customer.