Terms & Conditions

3.1. Enerdrive

3.1.1.  Goods supplied by Enerdrive must be in accordance with the specifications disclosed by Enerdrive prior to the supply of the goods, as modified by any particular terms set out in the Quote.

3.1.2.  Services provided by Enerdrive must be performed with due care and skill (applying an acceptable level of skill and technical knowledge), in a way which is fit for any purpose specified by the Customer to which Enerdrive has agreed.

3.1.3.  If Enerdrive considers that the information, documents and other particulars provided by the Customer are not sufficient to enable Enerdrive to provide the goods or services in accordance with this Agreement, then Enerdrive may request further information or other particulars as necessary from the Customer. However, Enerdrive does not have any general obligation to inform itself of the Customer’s requirements or to consult with the Customer.

3.1.4.  Enerdrive will act in accordance with the Customer’s reasonable instructions, where practical. Enerdrive will provide the goods and perform the services within a reasonable time (to the extent that it is within its control to do so), and will give notice to the Customer if it becomes aware of any matter which may change the timing or scope of the provision of the goods or the performance of the services. A reasonable time for the supply of goods will typically be (commencing from when goods are ordered by the Customer):

3.1.4.1. between 2 and 10 business days when goods are in stock or when they can be ordered by Enerdrive from within Australia (in normal circumstances; excluding any (unless the Quote provides for installation and configuration).

3.1.4.2. between 15 and 30 business days when goods are not in stock and when they must be ordered by Enerdrive from outside Australia (in normal circumstances; excluding any disruption to usual trade arrangements).

While Enerdrive takes care in preparing quotations, availability and pricing of goods may vary without notice to Enerdrive and so Enerdrive is entitled to vary any Quote at any time, (even after the Customer has accepted it, if there has been a relevant change in availability and pricing of goods). Enerdrive may also vary any Quote at any time to correct any errors and omissions in the Quote. The Customer is not bound by any varied Quote until they have had an opportunity to consider it and have accepted or adopted it (which the Customer may do expressly, or by their conduct).

3.1.5. Delivery of goods is covered by clause 3.2.5. Enerdrive will perform services either at Enerdrive’s office, the Delivery Address or another location as appropriate.

3.2. The Customer

3.2.1. The Customer must determine whether the goods and services requested by the Customer and supplied by Enerdrive are adequate for the purpose intended by the Customer. Enerdrive is not capable of determining all of the Customer’s objectives in relation to the goods and services and relies on the Customer as to whether the goods and services are adequate to achieve the Customer’s purpose and objectives. For clarity – the purchase of goods from Enerdrive does not include the service of installing and configuring those goods (including damage to packaging) or otherwise unsaleable (or only saleable at a reduced price) – either as a result of any act, omission or negligence by you, or as a result of any event occurring during the time between delivery of goods and when the goods are appropriately returned to us – will not be accepted for return. Before returning any goods, the Customer must:

3.2.2.  As soon as practicable after a request by Enerdrive, the Customer must make available all information, documents and other particulars which Enerdrive has requested, to enable Enerdrive to provide the goods and to perform the services.

3.2.3.  The Customer grants Enerdrive right of access to any relevant site as required to deliver the goods and to perform the services (if relevant). Where the consent of any third party is required for Enerdrive to access any relevant site, the Customer is responsible for arranging such consent.

3.2.4.  The Customer must advise Enerdrive in writing within a reasonable time after the Customer becomes aware of any matter which may change the scope or timing of the goods or services required by the Customer.

3.2.5.  The Customer must pay for the cost of freight of the goods to the Delivery Address (including any handling costs and the costs of packing the goods for transit) – unless otherwise agreed in the Quote. The Customer is responsible for the risk of goods which are in transit from Enerdrive (or from a supplier of Enerdrive) to the Delivery Address until they are delivered to the Customer.

3.2.6.  The Customer acknowledges that any software which is provided by Enerdrive will be subject to typical software licensing arrangements which will apply to the Customer’s use of the software. The Customer agrees that it must comply with the terms of such software licensing arrangements and that Enerdrive is not responsible for monitoring the Customer’s compliance with software licensing arrangements.

3.2.7.  If you wish to return goods, then we reserve the right to assess their condition at the time when you propose the return of goods to us, or at a later time. Goods which are damaged disruption to usual trade arrangements); and

3.2.7.1. pack the goods properly in order to prevent any damage to them;

3.2.7.2. ensure that supporting documentation including proof of purchase is provided to Enerdrive;

3.2.7.3. if the goods are being returned as defective, ensure that the goods really are defective before returning them; and

3.2.7.4. bear transit risk in relation to the goods until they are actually received by Enerdrive.

3.2.8. The Customer must comply with all other provisions of these Terms.

4. Payment

4.1.  The Customer must pay all Enerdrive invoices for goods and services and reimbursable expenses under this Agreement in full, without deduction or set off, at the times and in the manner set out in this Agreement. This is a fundamental obligation of the Customer. Enerdrive retains ownership of all goods until it has been paid in full for the relevant goods. Each time that the Customer is required to pay Enerdrive, it is required to do so in cleared funds.

4.2.  The Customer must pay Enerdrive for the goods and services in accordance with the timing set out in the Quote. If there is no timing set out in the Quote then:

4.2.1.The Customer must pay to Enerdrive the total value of any invoice which includes goods before delivery of the goods. The Customer acknowledges that they must pay that invoice before the goods will be ordered by Enerdrive and before the timeframes set out in clause 3.1.4 begin;

4.2.2. The Customer must pay the price of any services (other than services which are included in any such invoice as mentioned in clause 4.2.1) to Enerdrive immediately on receipt of an invoice from Enerdrive in respect of the services.

If there is specific timing for payment set out in the Quote then that will take precedence over the timing for payment set out here.

If there is specific timing for payment set out in the Application then that will take precedence over the timing for payment set out here.

4.3. The Customer must pay GST to Enerdrive on any taxable supply within the meaning of the GST Law made to the Customer pursuant to these conditions. Payment of GST must be made at the same time as amounts are due pursuant to Clause 4.2.

4.4.  In addition to any amount stated in the Quote, Enerdrive is entitled to recover from the Customer any costs and expenses payable to third parties which Enerdrive incurs in the course of supplying goods and services to the Customer (‘reimbursable expenses’). (However, nothing will entitle Enerdrive to recover a cost or expense twice – for example in the Quote and again under this clause). Where those costs exceed $100 and it is practical to do so, Enerdrive will inform the Customer before incurring such costs and expenses.

4.5. If there is a change in the scope, timing or order of the goods and services then Enerdrive will be entitled to payment of an additional amount which is reasonable in the circumstances. In particular, if goods are returned as defective but are not in fact defective after testing, then Enerdrive is entitled to charge the Customer for all relevant additional freight and handling costs and for the costs of Enerdrive’s labour in investigating the alleged defects in the goods.

4.6. Any additional goods required by the Customer will be charged to the Customer on the basis of a further quotation from Enerdrive.

4.7. Enerdrive may, at its discretion, increase the fee payable for goods and services because of any delay in the supply of information, documents, other particulars and access to any relevant site.

4.8. If any payment issued by the Customer in payment for the goods and services is dishonoured, rejected or otherwise fails to achieve the actual and permanent transfer of actual funds to Enerdrive, then Enerdrive may refuse to supply any further goods and services until satisfactory payment is received in full. Any dishonour or rejection or similar fee(s) charged to Enerdrive will be recoverable in full from the Customer.

4.9.  If the Customer does not pay any payment or amount due on the due date in accordance with the terms of this Agreement, then without prejudice to any other right or remedy:

4.9.1.  Enerdrive may, at its discretion, withhold the

provision and release of goods and the provision of services until receipt of actual payment of all unpaid amounts by the Customer;

4.9.2.  all outstanding money carries a late payment fee of 10% per annum calculated daily on the unpaid amounts from the date for payment to the date of actual payment (“Interest”);

4.9.3.  any costs incurred by Enerdrive in collecting monies due and payable (including, without limitation, the fee of any mercantile agencies or solicitors appointed by Enerdrive on a full indemnity basis) will be recoverable in full from the Customer (“Costs”); and

4.9.4.  Enerdrive may recover any payment or amount due under the Agreement together with any Costs incurred and Interest from the Customer as a liquidated debt in a court or tribunal of a competent jurisdiction irrespective of any Claim that the Customer may have against Enerdrive for any thing or matter related to the goods and services delivered under this Agreement.

4.10.  Enerdrive is not responsible for any delays in funds being received to the account nominated by Enerdrive, nor is Enerdrive responsible for banking errors or accounting, administrative or similar errors by the Customer. The Customer must take care to ensure that all transfers or remittances of funds to Enerdrive are processed promptly and accurately. The Customer must not object if Enerdrive charges Interest or Costs or refuses to supply further goods or services due to funds not being received by Enerdrive when they are required (by this Agreement) to be received.

4.11. If the Customer disputes the whole or any part of the amount claimed in an invoice issued by Enerdrive, then the Customer must pay that part of the account that is not in dispute and must provide Enerdrive with the Customer’s written reasons for disputing the unpaid amount of the invoice.

4.12. If after the date of acceptance of the Quote there is any change to relevant laws, by-laws, regulations or ordinances of any Australian Government or statutory authority, and that change directly or indirectly affects the costs or reimbursable expenses incurred by Enerdrive in performing the goods and services, then Enerdrive may elect to vary the prices, amounts and/or reimbursable expenses payable to Enerdrive accordingly.

4.13. If Enerdrive, at its discretion, allows a Customer to cancel an order for goods after the Customer has made the order, then for Goods which are not defective but which are appropriately returned to us, Enerdrive may charge the Customer a restocking fee equal to 15% of the price of the order. The Customer acknowledges that Enerdrive may exercise discretion about whether to allow cancellation of an order for goods, and also acknowledges that some goods, once ordered, are not able to be returned to the supplier and that Enerdrive will not allow such orders to be cancelled.

4.14. Goods which are defective (other than as a result of any act, omission or negligence by you, or as a result of any event occurring during the time between delivery of goods and when the goods are appropriately returned to us) will not incur any restocking fee, and we will pay the reasonable costs of their return (to be pre-authorised by Enerdrive).

4.15. The Customer authorises Enerdrive to conduct all credit checks and searches of the Customer and its financial and business affairs deemed necessary by Enerdrive (including any stated in the Quote). The Customer must provide all necessary written authorisations for credit checks and searches as requested from time to time by Enerdrive. The Customer authorises Enerdrive to use that information for credit assessment, debt collection, direct marketing activities and/or any other purpose deemed necessary by Enerdrive and disclose that information (and any other relevant information collected by Enerdrive in the course of its business relationship with the Customer) to credit reporting agencies and other credit providers.

4.16.  Any finance arrangements including for rental of goods are arrangements between the Customer and a third party financier and are not arrangements between Enerdrive and the Customer. Any information provided by a financier to the Customer (for example, calculations of rental costs) is a matter between the Customer and that financier and is not a matter in relation to which the Customer may rely on Enerdrive.

4.17.  If there are any credit arrangements in place between Enerdrive and the Customer, then each new order which the Customer seeks to place with Enerdrive will (if accepted) be considered a new advance of money or credit within the meaning of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 which introduces s.415D(9), s.434J(8) and s.451E(8) into the Corporations Act.

5. Warranties in relation to goods and services

5.1.  The benefits under any voluntary warranty against defects which Enerdrive may provide are in addition to consumer guarantees and other rights and remedies available under the law, and any such Enerdrive warranty does not limit or replace the consumer guarantees or those other rights and remedies. The only voluntary warranty provided by Enerdrive is on Enerdrive’s website, currently at the location www.enerdrive.com.au/warranty/

5.2.  If the ACL applies to the relevant relationship between Enerdrive and the Customer, and if Enerdrive is supplying only goods, then the following clause 5.3 is relevant – otherwise, the following clause is not relevant.

5.3. 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.

5.4. If the ACL applies to the relevant relationship between Enerdrive and the Customer, and if Enerdrive is supplying goods and services, then the following clause 5.5 is relevant – otherwise, the following clause is not relevant.

5.5. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

• to cancel your service contract with us; and
• to a refund for the unused portion, or to compensation for its reduced value.

You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

5.6. So that the expectations between Enerdrive and the Customer are clear:

•   The Customer may detract from its ability to claim under any warranty which may apply, if seals on the hardware &/or devices are broken.
•   Problems occurring as a result of physical damage, normal wear and tear, or due to electrical faults (including misuse, or connection to improper polarity power sources) are not typically warranty issues.

6. Intellectual Property and Use of Information

6.1.  The Customer warrants to Enerdrive that the use of or reliance upon any data, design, plan or other information provided to Enerdrive by the Customer will not infringe any patent, trademark, design, copyright or confidentiality agreement in Australia or elsewhere. The Customer indemnifies Enerdrive against any Loss or Claim arising from a breach of this warranty.

6.2.  Any data, design, plan, report or other information developed as a result of the goods and services is provided to the Customer for the Customer’s purposes only and Enerdrive will bear no responsibility to any other person in respect of those things.

6.3.  Enerdrive retains ownership in all intellectual property created by Enerdrive in providing the goods and in performing the services. Provided that the Customer pays all amounts due to Enerdrive under the Agreement, Enerdrive grants the Customer an irrevocable and royalty-free non-exclusive license to use such relevant intellectual property for the purpose of obtaining the benefit of the goods and services only (but not to further exploit the intellectual property).

7. Limitation or exclusion of liability

7.1.  If the ACL applies to the relevant relationship between Enerdrive and the Customer, then Enerdrive is not permitted to exclude its liability for consequential loss or damage and does not attempt to do so. However, to the extent permitted by the ACL and by law generally, Enerdrive will be under no liability whatsoever to the Customer and/or any third party for any indirect, special, consequential or exemplary Loss or Claim or personal injury suffered by the Customer and/or any third party directly or indirectly in connection with the goods and services or directly or indirectly arising out of the Agreement or otherwise from the relationship between Enerdrive and the Customer and any third party, and whether actionable in contract, tort (including negligence), equity or otherwise.

7.2.  If Enerdrive causes any Loss to the Customer as a result of any deficiencies in the goods or in the performance of the services, or due to any negligence

of Enerdrive or due to any other cause then (where permissible under the ACL, if it applies) the extent of Enerdrive’s liability will be limited to a maximum of the amount actually paid to Enerdrive by the Customer for the goods and services. Enerdrive’s liability will also be reduced to the extent that the Customer or any other person contributed to the Loss.

7.3. In addition to each other limitation which applies to the relationship between Enerdrive and the Customer, Enerdrive is only required to (and its liability is limited to):

7.3.1. either replacing or repairing goods or reimbursing the Customer for the repair or replacement of the goods (at the election of Enerdrive);

7.3.2. either re-supplying services or reimbursing the Customer for paying someone else to supply the services (at the election of Enerdrive).

If the ACL applies to the relevant relationship between Enerdrive and the Customer, then this clause only applies in relation to goods and services which are not used for personal, domestic or household purposes.

8. Indemnity, marketing claims and no loss leading

8.1. To the extent permitted by law, the Customer indemnifies Enerdrive against any Loss or Claim arising, directly or indirectly, in connection with the goods and services or directly or indirectly out of the Agreement or otherwise from the relationship between Enerdrive and the Customer and any third party. This includes indemnifying Enerdrive for any Loss or Claim, including Interest and Costs, associated directly or indirectly with the breach of the Agreement by the Customer. If the ACL applies to the relevant relationship between Enerdrive and the Customer, then this indemnity is intended to be read down or severed if necessary, to the extent to ensure that there is no breach of the ACL.

8.2. You agree that you must not make claims about our goods or services in public, in the market generally, or to third parties, especially including customers of yours to whom you may resupply our goods or services, unless those claims are completely consistent with actual facts and with any data sheets, specifications and other information which we may make available in relation to our goods and services.

8.3. You agree that you must not purchase any of our goods in order to use any item or product forming part of our goods as a ‘loss leader’ – for example, you may not acquire any item or product forming part of our goods with the intention of selling that item or product below its cost, in order to promote your business and to attract customers who are likely to purchase other goods or services from you. We do not agree to provide our goods for that purpose and are not required to do so.

9. Governing law and severability

9.1. The Agreement will be governed by and construed in accordance with the laws of Queensland. The parties submit to the non-exclusive jurisdiction of the Courts of that jurisdiction.

9.2. If any part or provision of the Agreement is held unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, the invalid or unenforceable part or provision will be replaced with a provision which accomplishes, to the extent possible, the original purpose of the part or provision in a valid and enforceable manner, and the remainder of the Agreement will remain binding on the parties.

10. Force majeure

10.1. If by reason of any fact, circumstance, matter or thing beyond the reasonable control of a party, that party is unable to perform, in whole or in part, any obligation under the Agreement, then that party is relieved of that obligation under the Agreement (to the extent and for the period that it is so unable to perform) and is not liable to the other party in respect of such inability. This provision does not apply in relation to obligations to make payment to the other party.

11. Default and termination

11.1. Without prejudice to any of Enerdrive’s other rights and entitlements under this Agreement, Enerdrive may terminate this Agreement at any time and for any reason, by not less than 5 business days’ written notice to the Customer.

11.2. Without prejudice to any of the Customer’s rights and entitlements under this Agreement, the Customer may terminate this Agreement at any time and for any reason, by not less than 5 business days’ written notice to Enerdrive.

11.3. If either party terminates the Agreement, then Enerdrive will be entitled to payment of the unpaid value of all goods and services performed by Enerdrive up to the date of termination as well as reimbursable expenses. Enerdrive’s entitlement to payment includes entitlement to payment for any materials ordered by Enerdrive for the Quote and for which Enerdrive is legally bound to pay, provided that the title in materials will vest in the Customer upon payment of the relevant price set out in the Quote. Enerdrive may also charge the Customer a restocking fee as contemplated by the Agreement (including clause 4.13).

11.4. If the Customer fails to keep, perform or observe any express or implied term of the Agreement and/or any other agreement with Enerdrive, including making any payment in accordance with this Agreement, then Enerdrive may immediately or at any time without giving any prior notice to the Customer, suspend the performance of Enerdrive’s obligations under the Agreement and may (after giving reasonable notice to the Customer) terminate this Agreement.

11.5. If the Customer commits any of the following acts then Enerdrive may immediately or at any time without giving any notice to the Customer, suspend or terminate the Agreement:

11.5.1. commits any act of bankruptcy;
11.5.2. commits any act of dishonesty or fraud in relation to the Agreement;
11.5.3. being a company does any act which would render it liable to be wound up or has a receiver or administrator appointed over itself or its property (subject to the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 to the extent it may impact on this clause);

11.5.4. ceases to carry on business, or has a change in ownership.

11.6.  In this Clause, Enerdrive’s exercise of any rights of termination or suspension, will not release the Customer from any liability for their default in keeping, performing or observing any of the express or implied terms of the Agreement and will be without prejudice to Enerdrive’s right to retain all money paid to Enerdrive pursuant to the Agreement and Enerdrive’s right to claim for Loss.

11.7.  If the Agreement is terminated for any reason other than as specifically permitted pursuant to the Agreement or with the express consent of Enerdrive in writing, then without prejudice to its other rights at law or in equity, Enerdrive may at any time demand immediate payment of all or any of the following:

11.7.1.  the balance of any payments due under the Agreement for the goods and services (even if not all of them were otherwise due at that time);

11.7.2.  the costs of repossession of any materials of Enerdrive and goods owned by Enerdrive situated at the site and all expenses incurred by Enerdrive in retrieving such materials and goods, including legal costs on a full indemnity basis;

11.7.3.  Enerdrive’s legal costs on a full indemnity basis for the enforcement of all or any of Enerdrive’s rights or entitlements pursuant to the Agreement;

11.7.4.  Interest on all money payable under this provision from the date of termination to the date of payment;

11.7.5.  allarrearsofpaymentsandothermoneythen due and payable by the Customer including without limitation, any Costs and Interest; and

11.7.6.  the costs of any attempt(s) by Enerdrive in respect of all or any of the matters referred to above.

11.8.  If Enerdrive is entitled to repossess materials and goods under Clause 11.7, then the Customer acknowledges Enerdrive may enter and recover possession at any relevant site owned, possessed or controlled by the Customer and the Customer agrees that Enerdrive has an irrevocable licence to do so without incurring liability to the Customer or any person claiming through the Customer.

12. Communication and Notices

12.1. Enerdrive and the Customer agree that they may communicate with each other for all purposes by email and that email will be regarded as ‘writing’ and ‘written notice’. Notices under this Agreement must be in writing and addressed to the usual or last known place of business of the party that the Notice is given to (including to any email address notified to the other party which is actually used by that party). This is express authority for Enerdrive to communicate with the Customer under the Spam Act 2003.

13. PPS

13.1. Definitions and Interpretation:

(a)  “PPS Act” means the Personal Property Securities Act 2009 (Cth);

(b)  “collateral” has the meaning contemplated by s.10 of the PPS Act and specifically includes all goods (or the proceeds of any sale by you of such goods) in respect of which we have a security interest, as contemplated by clause 13.2.2 and, where relevant, as contemplated by clause 13.3.3 below;

(c)  Where terms are used in this clause 13 of these Terms and they are terms defined by the PPS Act, then those terms are intended to have the meaning defined in the PPS Act. This is the case whether or not the terms are indicated as being defined in the PPS Act in the text of this clause 13.

13.2. You acknowledge that:

13.2.1 all goods supplied by us to you are acquired in the course or furtherance of an enterprise by you, and are commercial property (as defined in s.10 of the PPS Act);

13.2.2 we will have a security interest (as defined in s.12 of the PPS Act) in goods purchased by you, and in the proceeds of any sale by you of such goods, until title to the goods passes to you after full payment for them;

13.2.3 the security interest secures the purchase price for all goods supplied by us to you;

13.2.4 the security interest attaches to goods purchased by you from us as soon as you have rights in the goods as contemplated by s.19(5) of the PPS Act; and

13.2.5 the security interest comprises a purchase money security interest (as defined in s.14 of the PPS Act) to the extent it secures purchase money obligations (as defined in s.14(7) of the PPS Act).

In addition, you acknowledge that:

13.3.1 allofyourpresentandafter-acquiredproperty is used in the course or furtherance of an enterprise by you, and is commercial property (as defined in s.10 of the PPS Act);

13.3.2 you charge all of your present and after- acquired property (and proceeds thereof) with the performance of all of your obligations to us under these Terms;

13.3.3 in doing so you grant us a security interest in (and we take a security interest in) all of your present and after-acquired property (and proceeds thereof);

13.3.4 that security interest described in clause 13.3.3 secures the payment of all money owed to us by you under these Terms and the performance of all of your obligations to us under these Terms; and

13.3.5 except to the extent that the security interest described in clause 13.2.2 may apply to certain elements of your present and after-acquired property, the security interest described in clause 13.3.3 does not comprise a purchase money security interest.

13.4. We are entitled to register our security interests pursuant to the PPS Act, and you must do everything (such as obtaining consents, completing, signing and supplying signed copies of documents, and supplying information), which we require to be done for the purpose of ensuring that each security interest of ours is enforceable, perfected, has the required and intended priority, is otherwise effective, and can be practically and lawfully enforced by us against you (and against third parties as relevant).

13.5 You hereby waive, as permitted by s.157(3) of the PPS Act, any right to receive a verification statement or any other notice in relation to a registration event (for example, any right under s.157(1) of the PPS Act).

13.6 We and you hereby enter into a confidentiality agreement (as contemplated by s.275(6)(a) of the PPS Act) and agree that (subject to section 275(7) of the PPS Act) neither you nor we will disclose information of the kind mentioned in section 275(1) of the PPS Act.

13.7 If:

13.7.1 you dispose of the goods before title to the goods passes to you (whether or not that disposal is with our permission; this clause does not condone or permit any such disposal); and

13.7.2 you will, in those circumstances, hold a security interest granted by a third party in respect of the goods (a “secondary security interest”);

then you must:

13.7.3 establish and implement procedures to perfect that secondary security interest and to maintain it as continuously perfected;

13.7.4 take all necessary steps under the PPS Act to obtain the highest possible ranking priority for that secondary security interest;

13.7.5 establish and implement procedures and take all necessary steps to reduce (so far as possible) the risk that a third party might acquire an interest in the goods which is free of our security interest or which is free of the secondary security interest; and

13.7.6 do everything which we reasonably require to be done to comply with the obligations stated in this clause 13.7.

13.8 Payments made by you to us will be applied in the order contemplated by s.14(6)(c) of the PPS Act.

13.9 Contracting out of certain enforcement provisions:

As permitted by s.115(1) of the PPS Act, we and you hereby agree that:

13.9.1 s.95 and s.130 of the PPS Act, to the extent that each of those sections require us to give notice to you, do not apply to our security interests;

13.9.2 s.121(4) and s.132(4) of the PPS Act do not apply to our security interests;

13.9.3 We may elect to give notice to you as contemplated by s.135(1)(a) of the PPS Act, but we are not obliged to do so; and

13.9.4 If:

13.9.4.1 title to collateral has not passed to you; and

13.9.4.2 where we have seized such collateral as contemplated by Division 2 of Part 4.3 of the PPS Act (or have seized such collateral in another manner);

then:

13.9.4.3 (noting that the collateral is in fact still our property because title to the collateral has not passed to you) to the extent permissible under the PPS Act, nothing in s.125 or in s.134(1) or in other sections of the PPS Act is to be taken to prevent us from retaining such collateral, without any obligation to take any further step in relation to disposal of the collateral or any obligation to give notice to you in connection with such collateral. It is intended that if this clause 13.9.4 is unenforceable or illegal, then it is intended to be severed from this document without affecting the validity of other sections of this document.

14. Reliance on information, and invoice financing

You acknowledge that we will rely on the information which you have supplied and will supply to us in the course of our dealings, including information which has been provided or will be provided to us, in assessing your creditworthiness and in making a decision as to whether to extend credit to you (or, where relevant, whether to continue to extend credit to you). You warrant, represent and undertake to us that:

1) all of the information which you have supplied and will supply to us in the course of our dealings, including information which has been provided or will be provided to us for the purpose of assessing your application for credit or for the purpose of assessing whether to continue any credit arrangements, is and will be complete, accurate and not misleading;

2) you have completely and accurately disclosed (and will in future completely and accurately disclose) all of your financial arrangements with financiers (whether secured or unsecured, and whether related parties or third parties), suppliers and other parties who have provided you with (or will in future provide you with) finance or credit to us, in a way which is not misleading;

3) you have no financial arrangements with financiers (whether secured or unsecured, and whether related parties or third parties), suppliers or other parties which are in the nature of invoice financing, factoring, discounting, or which involve the sale, assignment or creation of security over your book debts, including any situation where a security interest is granted in an account as defined in the Personal Property Securities Act 2009 for new value, or any similar arrangement (together all called ‘invoice financing’) except for those financial arrangements specifically disclosed in writing to us; 4) you will not enter into any invoice financing financial arrangements without first obtaining our permission in advance (and without providing us with at least 30 days advance notice of your intention to enter into any such invoice financing financial arrangements); and you agree that if you enter into any invoice financing financial arrangements (or any other arrangements which we reasonably, on the basis of the information available to us, consider may cause any deterioration in our financial, credit or security position), then we are entitled to immediately withdraw any credit previously provided to you, and to require immediate payment of the balance owing to us.

15. Increased Customer Risk

If Increased Customer Risk occurs, then we are entitled to immediately withdraw any credit previously provided to you, and / or suspend any further supply to you, whether on credit or otherwise and / or reduce your credit limit to zero, and / or to require immediate payment of the balance owing to us.