1.1 “Agreement” means the contract incorporating these terms and conditions, as lawfully varied from time to time.
1.2 “ASE” means Aussie Strength Pty Ltd T/A Aussie Strength, its successors and assigns or any person acting on behalf of and with the authority of Aussie Strength Pty Ltd .
1.3 “Claim” includes all actions, suits, causes of action, arbitrations, claims, demands, proceedings, complaints and objections in respect of any debts, dues, costs, expenses, obligations, liabilities, interest, verdicts, orders or judgments either at law or in equity or arising under a statute and whether ascertained or unascertained, or immediate, future or contingent.
1.4 “Client” means the person/s and/or entity/entities buying the Goods and/or Services as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.5 “Consequential Loss” means any indirect or consequential loss; loss of use; loss of product or production; delayed, postponed, interrupted or deferred production; inability to produce, deliver or process; loss of profit, revenue or anticipate revenue; loss of bargain, contract, expectation or opportunity; punitive or exemplary damages; in each case arising from or in connection with the performance of this Agreement and whether or not foreseeable at the time of entering into this Agreement or at the time of provision of the Goods.
1.6 “Control” has the same meaning as in section 50AA of the Corporations Act 2001 (Cth).
1.7 “Dispute” means any dispute between the parties relating to the interpretation of this Agreement or the performance by any party of its obligations under this Agreement.
1.8 “Force Majeure Event” means an act, event or cause that is beyond the reasonable control of ASE including but not limited to acts of God, lightning, earthquakes, floods, storms, other natural disasters, explosions, fires, acts of war, acts of public enemies, terrorism, public disorder, riots, civil commotion, revolution, sabotage, malicious damage, any order or temporary or permanent injunction of any court or acts of a government or government instrumentality, strikes, lockouts, labour disputes (to the extent they exceed seven days), road closure, traffic congestion, quarantine or customs restriction, embargo, interruption of power supply, scarcity of fuel, accident, collision or breakdown of vehicle, machinery or equipment.
1.9 “Goods” means all Goods or Services supplied by ASE to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.10 “GST Acts” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
1.11 “Person” includes any individual, firm, corporation, trust or government authority.
1.12 “Price” means the Price payable for the Goods as agreed between ASE and the Client in accordance with clause 3 below.
1.13 “Related Entity” means any of the following:
(a) an associated entity of the Client within the meaning of that term as defined in the Corporations Act 2001 (Cth);
(b) any Person that is Controlled by the Client;
(c) any person that Controls the Client;
(d) if the Person is a company, any director of that company and any shareholder who (or who together with their Related Entities) owns at least 40% of the issued shares;
(e) the trustee of any trust in which the Client and any of its other Related Entities have fixed interested in 40% or more of the income or capital, have ever received 20% or more of all distributions of income or capital in a financial year or have the power to change the trustee or vary the terms of the trust.
(f) 1.14 “Services” means any act conducted by ASE or is may be provided by ASE including any act by any subcontractor or any third party at the request of a director of ASE directly or indirectly at the request of a Client.
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by this Agreement if the Client places an order for or accepts delivery of the Goods or Services.
2.2 The Client and ASE agree that the terms of this Agreement may be amended unilaterally by ASE giving 30 days’ written notice. Clerical errors are subject to correction without notification.
3.1 ASE is only liable to provide Goods and/or Services under this Agreement in the terms of the form being Schedule 2 to this Agreement.
4. Acknowledgements by Client
4.1 The Client:
(a) agrees that all of its Related Entities that request ASE to provide Goods and/or Services are parties to this Agreement;
(b) enters into this Agreement on its own behalf and on behalf of all Related Entities;
(c) warrants that it has the authority of all Related Entities to enter into this Agreement on their behalf; and
(d) will procure the compliance by any Related Entities with the terms of this Agreement.
5. Price and Payment
5.1 At ASE’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by ASE to the Client; or
(b) the Price as at the date of delivery of the Goods according to ASE’s current price list; or
(c) ASE’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 ASE reserves the right to change the Price if a variation to ASE’s quotation is requested.
5.3 At ASE’s sole discretion a non-refundable deposit may be required as a precondition to it providing the Goods.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by ASE, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with ASE’s payment schedule;
(d) fourteen (14) days following the date of the invoice given to the Client by ASE;
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by ASE.
5.5 Payment may be made by cash, financial institution funds transfer, bank cheque, credit card (plus a surcharge of up to two percent (2%) of the Price), or by any other method as agreed to between the Client and ASE. ASE reserves the right to charge a $50 processing fee for any bank or personal cheque provided by the client as payment of any financial obligation it has to ASE.
5.6 All freight costs are estimates only (subject to clause 5.2). All freight costs must be paid in full by the Client.
6.1 Unless a contrary intention appears, any term used in this Agreement shall have the same meaning in this Agreement as defined in the GST Acts.
6.2 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to ASE an amount equal to any GST ASE must pay for any supply by ASE under this or any other agreement for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
7. Delivery of Goods
7.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that ASE (or ASE’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
7.2 At ASE’s sole discretion the cost of delivery is in addition to the Price.
7.3 ASE may deliver the Goods in separate instalments. Each separate instalment shall be invoiced in the absolute discretion of ASE in accordance with the provisions in this Agreement.
7.4 Where goods or services are delivered by ASE in instalments or separately, the terms of 7.1 to 7.3 above apply to each separate and specific delivery of goods or services by ASE.
7.5 The Client may request ASE to deliver goods in parts and instalments, which will be at ASE's sole discretion to agree to where each delivery instalment may be charged to the client as a seperate invoice item, where by terms 7.1 to 7.3 above apply to each seperate and specific delivery
8.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client may insure the Goods on or before Delivery.
8.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, ASE is entitled to receive all insurance proceeds payable for the Goods. The production of this Agreement by ASE is sufficient evidence of ASE’s rights to receive the insurance proceeds without the need for any person dealing with ASE to make further enquiries.
8.3 If the Client requests ASE to leave Goods outside ASE’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk
8.4 The Goods are at the risk of the Client and not ASE. Unless expressly agreed in writing, ASE excludes all liability to the Client in tort (including negligence), contract, bailment, or otherwise for:
(a) loss of, damage to, deficiency in, deterioration, evaporation or contamination of all Goods or other property; and
(b) delay in delivery or misdelivery or non-delivery of the Goods.
8.5 The Client irrevocably waives any entitlement to allege or claim (except if permitted by ASE) and hereby agrees to forever hold ASE harmless from any apportionment which may be sought against ASE, under either Part 4 of the Civil Liability Act 2002 (NSW) or any equivalent law in any other state or otherwise.
8.6 Notwithstanding any other provision of this Agreement, ASE will under no circumstances be liable for any Claim for Consequential Loss and the Client releases and indemnifies ASE against any Claim for Consequential Loss.
8.7 The Client indemnifies ASE against any liability (without limiting the foregoing, whether arising as a result of any breach of this Agreement, negligence or wilful act or omission or misconduct on behalf of ASE) in respect of the Goods to any Person (other than the Client) who claims to have, who has or who may hereafter have any interest in the Goods or any part thereof.
9. Notice period for Claims
9.1 Notwithstanding any other provision of this Agreement, ASE will be completely discharged and released from all liability in respect of the Goods unless written notice of a Claim is given in writing to ASE within seven (7) days of the Goods being delivered.
9.2 ASE will be discharged and released from all liability in respect of the Goods and Services unless an action is brought within twelve (12) months from the date of the Goods being delivered.
10.1 ASE and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid ASE all amounts owing to ASE; and
(b) the Client has met all of its other obligations to ASE.
10.2 Receipt by ASE of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to ASE on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for ASE and must pay to ASE the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for ASE and must pay or deliver the proceeds to ASE on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of ASE and must sell, dispose of or return the resulting product to ASE as it so directs.
(e) the Client irrevocably authorises ASE to enter any premises where ASE believes the Goods are kept and recover possession of the Goods.
(f) ASE may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of ASE.
(h) ASE may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
11. Personal Property Securities Act 2009 (“PPSA”)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to this Agreement in writing the Client acknowledges and agrees that this Agreement constitutes a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by ASE to the Client.
11.3 The Client (and if more than one then individually) agrees to do anything that ASE reasonably requires to ensure that ASE has at all times continuously perfected security interests granted under this Agreement.
11.4 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which ASE may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 11.4(a)(i) or 11.4(a)(ii);
(b) indemnify, and upon demand reimburse, ASE for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of ASE;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of ASE;
(e) not try to reduce its liability to ASE through set off or counterclaim;
(f) not exercise a right of contribution or indemnity before or until all money payable to ASE in connection with this Agreement is paid in full;
(g) immediately advise ASE of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
11.5 ASE and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this Agreement.
11.6 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
11.7 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.8 Unless otherwise agreed to in writing by ASE, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.9 The Client must unconditionally ratify any actions taken by ASE under clauses 11.4 to 11.6.
11.10 ASE may allocate amounts received in any manner it determines, but in default will apply the amounts first to payment of any unsecured amount owing to ASE, next as to any reasonable enforcement expenses and then as to any secured balance owing to ASE.
11.11 Subject to any express provisions to the contrary nothing in this Agreement is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. Security and Charge
12.1 In consideration of ASE agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under this Agreement (including, but not limited to, the payment of any money).
12.2 The Client indemnifies ASE from and against all ASE’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising ASE’s rights under this clause.
12.3 The Client irrevocably appoints ASE and each director of ASE as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
13. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
13.1 It is the responsibility of the Client to ensure that the Goods are sufficient and suitable for the Client’s purpose. The Client should make and rely upon the Client’s own assessments and enquiries to verify the accuracy of the information provided by ASE.
13.2 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify ASE in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow ASE to inspect the Goods.
13.3 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into this Agreement (Non-Excluded Guarantees).
13.4 ASE acknowledges that nothing in this Agreement purports to modify or exclude the Non-Excluded Guarantees.
13.5 Except as expressly set out in this Agreement or in respect of the Non-Excluded Guarantees, ASE makes no warranties, guarantees or other representations under this Agreement including but not limited to the quality or suitability of the Goods. ASE’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.6 If the Client is a consumer within the meaning of the CCA, ASE’s liability is limited to the extent permitted by section 64A of Schedule 2.
13.7 If ASE is required to replace the Goods under this clause or the CCA, but is unable to do so, ASE may refund any money the Client has paid for the Goods. This obligation on the part of ASE only arises where the Client has returned to ASE the goods provided by ASE and the subject of complaint or dispute by the Client.
13.8 If the Client is not a consumer within the meaning of the CCA, ASE’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by ASE at ASE’s sole discretion;
(b) limited to any warranty to which ASE is entitled, if ASE did not manufacture the Goods;
(c) otherwise negated absolutely.
13.9 Subject to this clause 13, returns will only be accepted provided that:
(a) the Client has complied with the provisions of this Agreement; and
(b) ASE has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
13.10 Notwithstanding clauses 13.1 to 13.9 but subject to the CCA, ASE shall not be liable for any defect, loss, Claim, Consequential Loss or damage in any form or in any manner whatsoever which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by ASE;
(e) fair wear and tear, any accident, or act of God.
13.11 ASE may in its absolute discretion accept non-defective Goods for return in which case ASE may require the Client to pay handling fees of up to twenty five percent (25%) of the value of the returned Goods plus any freight costs.
13.12 Notwithstanding anything contained in this clause if ASE is required by a law to accept a return then ASE will only accept a return on the conditions imposed by that law.
14. Intellectual Property
14.1 Where ASE has designed, drawn or developed Goods for the Client, then the copyright or any other intellectual property right in any designs and drawings and documents shall remain the property of ASE.
14.2 The Client warrants that all designs, specifications or instructions given to ASE will not cause ASE to infringe any patent, registered design or trade mark in the execution of the Client’s order and the Client agrees to fully indemnify ASE against any action taken by a third party against ASE in respect of any such infringement.
14.3 The Client agrees that ASE may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which ASE has created for the Client.
15. Default and Consequences of Default
15.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of thirty percent per annum (30% p.a.) after as well as before any judgment.
15.2 ASE may in its absolute discretion and without duty or obligation to a client provide a discount on an amount the subject of an order under this agreement or as invoiced. In this instance time for payment of the invoice is of the essence. ASE may in its absolute discretion charge the full retail amount of the Goods or Services it would otherwise have charged but for the discount if the client does not pay the full amount of the initial invoice strictly within the terms recorded in that invoice.
15.3 If the Client owes ASE any money the Client shall indemnify ASE from and against all costs and disbursements incurred by ASE in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client or indemnity basis including ASE’s collection agency costs, and bank dishonour fees).
15.4 Without prejudice to any other remedies ASE may have, if at any time the Client is in breach of any obligation (including those relating to payment) under this Agreement ASE may suspend or terminate the supply of Goods to the Client. ASE will not be liable to the Client for any loss or damage the Client suffers because ASE has exercised its rights under this clause.
15.5 Without prejudice to ASE’s other remedies at law ASE shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to ASE shall, whether or not due for payment, become immediately payable if:
(a) any money payable to ASE becomes overdue, or in ASE’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
16.1 ASE may cancel any contract to which this Agreement applies or cancel delivery of Goods at any time before the Goods are delivered by giving written notice in any form to the Client. On giving such notice ASE shall repay to the Client any money paid by the Client for the Goods. ASE shall not be liable for any loss or damage whatsoever arising from such cancellation.
16.2 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by ASE as a direct result of the cancellation (including, but not limited to, any loss of profits).
16.3 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
17. Privacy Act 1988
17.1 The Client agrees for ASE to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by ASE if requested by ASE.
17.2 The Client agrees that ASE may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client.
The Client understands that the information exchanged can include anything about the Client’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
17.3 The Client consents to ASE being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
17.4 The Client agrees that personal credit information provided may be used and retained by ASE for the following purposes (and for other purposes as shall be agreed between the Client and ASE or required by law from time to time):
(a) the provision of Goods; and/or
(b) the marketing of Goods by ASE, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.
17.5 ASE may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
17.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Client’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
(b) details concerning the Client’s application for credit or commercial credit and the amount requested;
(c) advice that ASE is a current credit provider to the Client;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Client’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of ASE, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Client’s credit obligations);
(g) advice that cheques drawn by the Client for one hundred dollars ($100) or more, have been dishonoured more than once;
(h) that credit provided to the Client by ASE has been paid or otherwise discharged.
18. Force Majeure Event
18.1 Non-performance by either party (other than the failure to make payment of the Price) caused by a Force Majeure Event will be excused as long as the Force Majeure Event exists.
18.2 If either party is affected by a Force Majeure Event, it will promptly notify the other and the parties will enter into good faith discussions to agree to alternative arrangements that are fair and reasonable.
18.3 Notwithstanding clauses 18.1 and 18.2, ASE may terminate these this Agreement without ASE having any liability to the client whatsoever if a Force Majeure Event occurs over a 5 day period, or on more than 30 days over a six month period.
19.1 In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect other provisions of this Agreement and this Agreement shall be constructed as if it did not contain the invalid, illegal or unenforceable provision.
20.1 Where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.
20.2 Words in the singular include the plural and vice versa.
20.3 A reference to a statute includes a reference to all enactments amending or consolidating the statute and to an enactment substituted for the statute and any subordinate legislation, including regulations.
21. Dispute Resolution
21.1 Parties to attempt resolution
(a) It is the desire of the parties to resolve a Dispute as quickly and with as minimal cost as possible. The parties must use their best endeavours to resolve the Dispute between themselves without delay.
(b) In the event of a Dispute not initially being resolved, the parties must meet to attempt to resolve the Dispute within fourteen (14) days written notice in any form being received for such a meeting.
(c) This clause does not apply where the Dispute relates to the non payment of money due and owing under this Agreement to ASE
22. Termination of Agreement
22.1 This Agreement will continue until terminated by ASE, ASE may terminated this Agreement in its absolute discretion.
23.1 If the Client is a company (including a corporate trustee of a trust) or partnership, then it will procure its directors or partners to guarantee performance of its obligations under this Agreement in terms set out at Schedule 1 or otherwise satisfactory to ASE to secure the obligations owed by the Client from time to time.
24. Governing Law
24.1 This Agreement shall be governed and construed in accordance with the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of that State.
25.1 The Client shall notify ASE in writing of an address to which ASE may forward any notice to the Client, and shall promptly notify ASE in writing of any change of such address.
25.2 Any notice to be given shall be sufficiently given if:
(a) Given personally to a person of appropriate seniority; or
(b) Sent by ordinary post, in the case of ASE to the Client, to the last address of the Client known to ASE or in the case of the Client to ASE, to at any address it may nominate from time to time.
25.3 Notification of amendment to this Agreement may be posted on the ASE website.
26.1 The failure by ASE to enforce any provision of this Agreement shall not be treated as a waiver of that provision, nor shall it affect ASE’s right to subsequently enforce that provision. If any provision of this Agreement shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
26.2 Subject to clause 13 ASE shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by ASE of this Agreement (alternatively ASE’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
26.3 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by ASE nor to withhold payment of any invoice because part of that invoice is in dispute.
26.4 ASE may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
26.5 The Client agrees that ASE may amend this Agreement at any time. If ASE makes a change to this Agreement, then that change will take effect from the date on which ASE notifies the Client of such change in writing. The Client will be taken to have accepted such changes if the Client makes a further request for ASE to provide Goods to the Client.
26.6 The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
26.7 Notwithstanding any other provision of this Agreement, it is expressly agreed that all the rights, immunities, waivers, indemnities, exemptions from and limitations of liability granted to the parties by the provisions set forth in this Agreement shall survive any termination of this Agreement and continue to have their full force and effect in all circumstances.
26.8 The Client indemnifies ASE against any Claim, loss, damage, expense, penalty, fine or liability arising from a breach by the Client of this Agreement.
26.9 The Client indemnifies ASE against any Claim, loss, damage, expense, penalty, fine or liability arising from a breach by the Client of this Agreement arising from a Claim by any third party:
(a) Directly or indirectly arising from the sale, delivery, use or misuse of the Goods by the third party; or
(b) The performance or non performance by ASE of any term of this Agreement.
26.10 The exclusions, releases and indemnities in favour of ASE in this Agreement apply in all circumstances, including if a Claim arises as a result of the negligence, breach of contract or wilful act or default of ASE.