Terms and Conditions of Service – Truck Tech Group
1. Definitions
1.1 "Asset" means a vehicle or trailer owned or operated by the Client and in relation to which the Company has agreed to provide Services.
1.2 "Australian Consumer Law" means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
1.3 "Cash Rate Target" means the interest rate on unsecured overnight loans between banks as published by the Reserve Bank of Australia.
1.4 "Change of Control" means
1.4.1 Subject to clause 1.4.2, a Change of Control occurs in relation to a body corporate or Entity (the body) where:
(a) an Entity that Controls the body ceases to Control the body; or
(b) an Entity that does not Control the body comes to Control the body.
1.4.2 No Change of Control occurs if:
(a) the Entity that ceases to Control the body under clause 1.4.1(a) was, immediately beforehand, Controlled by a body corporate that Controls the body;
(b) the Entity that comes to Control the body under clause 1.4.1(b) is, immediately afterward, a Wholly-owned Subsidiary of a body corporate that previously Controlled and continues to Control the body; or
(c) it results from a Change of Control of an Entity that is Listed on a recognised stock exchange.
1.4.3 Unless otherwise defined in this document, any term in title case used in this definition has the meaning given by the Corporations Act.
1.5 "Client" means the person(s) described in section 1 of the Credit Application Form.
1.6 "Confidential Information" means any information coming to a party by virtue of being a party to these Conditions (including specification and any charges for Work), except so far as it is in the public domain other than as a result of a breach by the party.
1.7 "Corporations Act" means the Corporations Act 2001 (Cth).
1.8 "Credit Application Form" means the form titled "Customer Credit Application Form" to which these terms and conditions are attached.
1.9 "Default Rate" means the rate that is three percent per annum (3%) above the Cash Rate Target.
1.10 "Governmental Agency" means:
1.10.1 a government, whether foreign, federal, state, territorial or local;
1.10.2 a department, office or minister of a government acting in that capacity; or
1.10.3 a commission, delegate, instrumentality, agency, board or other governmental or semi-governmental, judicial, administrative, monetary or fiscal authority, whether statutory or not.
1.11 "GST, taxable supply and tax invoice" have the same meaning as in the GST Act.
1.12 "GST Act" means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.13 "Guarantor" means the person or persons identified as "Guarantors" in the Credit Application including the executors, administrators, successors and permitted assigns of any such person or persons. In the event that the expression 'Guarantor' will be applicable to more than one person then those persons' liability hereunder will be joint and several.
1.14 "Hourly Rate Charge" means the outcome of multiplying the time spent by TT in providing the Services by the hourly charge rate (as updated by TT from time to time) for each category of employee that undertook the Services.
1.15 "Insolvency Event" means any of the following events occurring to a person: becoming Deregistered, stating that it is, or being, Insolvent, being an Insolvent Under Administration, having a Controller appointed over any of its assets, becoming an Externally-Administered Body Corporate, having a Provisional Liquidator appointed to it, any of the events listed in section 459C(2) of the Corporations Act, except to reconstruct or amalgamate while solvent, entering into a scheme of arrangement, composition with or assignment for the benefit of creditors, obtaining protection from its creditors under any applicable law or anything analogous or having a substantially similar effect to any of these events. Unless otherwise defined in this document, any term in title case used in this definition has the meaning given by the Corporations Act.
1.16 "Intellectual Property Rights" means all intellectual and industrial property including, without limiting the generality of the foregoing, any patent, patent application, trade mark, trade mark application, registered design, registered design application, trade name, trade secret, business name, discovery, invention, process, formula, know-how, rights of confidence, improvement, technique, copyright including rights in computer software, unregistered design right, technical information or drawing, and database and topography rights, and rights in the nature of unfair competition and rights to sue in passing off, and including in each case any pending applications or rights to apply for registrations of any of these rights, and any analogous rights to any of these rights, wherever in the world arising.
1.17 "Parts" means parts supplied by TT to the Client either separately, or as part of the Services (and where the context so permits will include the supply of Services as defined above).
1.18 "Parts Price" means the price quoted by TT for the relevant Parts supplied in connection with the Services (and if no such quotation, the amount specified in TT's listing of Parts maintained from time to time).
1.19 "Personal Information" has the meaning given in the Privacy Act.
1.20 "Personnel" means the directors, officers, employees, servants, agents and subcontractors and personnel of a person.
1.21 "PPSA" means Personal Property Securities Act 2009 (Cth).
1.22 "PPSR" means the Personal Property Securities Register, which records security interests registered in accordance with the PPSA.
1.23 "Price" means, in respect of the provision of Services (other than the supply of Parts), the Hourly Rate Charge for the relevant Services and, in respect of the supply of Parts, the Parts Price (subject in all cases to clause 6).
1.24 "Privacy Act" means the Privacy Act 1988 (Cth).
1.25 "Privacy Policy" means the Truck Tech Group's Privacy Policy, as amended from time to time and available at https://www.truck-tech.com.au/privacy-policy/.
1.26 "Services" means all services supplied by TT to the Client (and where the context so permits will include any supply of Parts) as described on the invoices, quotation, Work Order or any other forms provided by TT to the Client and will include any advice or recommendations.
1.27 "Terms" means these terms and conditions as available from time to time at www.truck-tech.com.au.
1.28 "Truck Tech Group" means Truck Tech Group Pty Ltd ACN 619 043 748, TTG Services Pty Ltd ACN 651 354 942, Truck Tech QLD Pty Ltd ACN 670 584 013, Truck Tech VIC Pty Ltd ACN 653 659 851 and Maintenance360 Pty Ltd ACN 668 460 204 and any of their related bodies corporate from time to time.
1.29 "TT" means the member of the Truck Tech Group that supplies the Services.
1.30 "Work Order" has the meaning given in clause 5.1.
2. Interpretation
2.1 Any provision of this document that would otherwise be invalid must be read down to any extent necessary to be valid. If that is not possible, the provision must be severed. All other provisions of this document are unaffected.
2.2 A provision of this document must not be construed to the disadvantage of a party merely because that party was responsible for including that provision in this document or that provision benefits that party.
2.3 In this document, unless the contrary intention appears:
2.3.1 a person includes a natural person, partnership, joint venture, unincorporated association, Governmental Agency, body corporate and any other legal entity;
2.3.2 the singular includes the plural and vice versa;
2.3.3 a capitalised term has the meaning given in clause 1 and where an expression is defined, its other grammatical forms have a corresponding meaning;
2.3.4 a clause, party, schedule, attachment, exhibit or annexure is a clause of or a party, schedule, attachment, exhibit or annexure to this document;
2.3.5 reference to a document is to that document as amended or varied;
2.3.6 any legislation includes any subordinate legislation under it and includes that legislation and subordinate legislation as modified, amended or replaced;
2.3.7 conduct includes any act, omission, representation, statement or undertaking whether or not in writing;
2.3.8 'writing', 'written' and 'in writing' include any mode of representing or reproducing words in a visible form;
2.3.9 'includes' or 'including', 'for example', or similar words do not limit what else might be included; and
2.3.10 a word or expression defined in the Corporations Act has the meaning given to it in the Corporations Act.
2.4 Any heading, index, table of contents or marginal note is for convenience and does not affect the interpretation of this document.
3. Competition and Consumer Act 2010 (Cth)
3.1 Nothing in this document is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) ('CCA') (including any substitute to the CCA or re-enactment thereof), except to the extent permitted by the CCA where applicable.
3.2 Where the Client obtains Services as a consumer, these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the Client's statutory rights.
4. Acceptance
4.1 Any instructions received by TT from the Client for the supply of Services and/or the Client's acceptance of Services supplied by TT will constitute acceptance of the terms and conditions contained in this document.
4.2 Services are supplied by TT only on the terms and conditions in this document and to the exclusion of anything to the contrary in the terms of the Client's order, notwithstanding that any such order is placed on terms that purport to override these terms and conditions.
5. Work Orders
5.1 The Client must give TT orders for Services via email ('Work Order'). TT may also choose to accept orders for Services by phone but may also (at its option, acting reasonably) require Clients to submit a Work Order in writing which confirms any order submitted by the Client over the phone.
5.2 No member of the Truck Tech Group is liable to supply any Services that aren't the subject of a Work Order that has been accepted in writing by TT.
5.3 Each Work Order must specify the details of the Asset that relates to the order for Services.
5.4 The acceptance of a Work Order by TT gives rise to a contract for the supply of Services in respect of that Work Order, governed by the terms of this document.
5.5 The Client may not amend or cancel a Work Order without the prior written consent of TT. The Client must provide:
5.5.1 24 hours notice for any proposed amendment of a Work Order; and
5.5.2 48 hours notice for any proposed cancellation of a Work Order.
6. Price and payment
6.1 TT will charge (and the Client must pay) the Price for the Services provided in respect of any Work Order accepted or actioned by TT.
6.2 The current hourly charge rates and Parts Prices of TT applicable at the time a Work Order is accepted will apply to that Work Order. TT may, from time to time, amend its hourly charge rates and Parts Prices in respect of future Work Orders only.
6.3 Notwithstanding clause 6.1, TT reserves the right to change the Price in the event of a variation to any Work Order. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation due to unforeseen circumstances, or due to fluctuations in the currency exchange rate, or as a result of increases to TT in the cost of materials and labour) will be charged by TT and will be shown as variations on the invoice.
6.4 Where TT is requested to store the Client's Parts or Asset, or where Parts or Assets are not collected within twenty-four (24) hours of notice to the Client that they are ready for collection, then TT may charge the Client a reasonable fee for storage.
6.5 All payments by the Client under this document must be made by credit card, direct debit or by any method as agreed to between the Client and TT in writing. Payments by credit card incur a surcharge of up to two and a half percent (2.5%) of the Price.
6.6 Upon the cessation of TT's engagement under this document, subject to payment of all outstanding amounts payable by the Client in accordance with the terms of this document, TT will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.
6.7 Payments must be made without set off or deduction under this document.
7. Invoices and remuneration
7.1 Each invoice issued by TT will:
7.1.1 be a tax invoice within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
7.1.2 indicate the Work Order number to which it relates;
7.1.3 be itemised; and
7.1.4 be emailed to the Client following the delivery of the Services.
7.2 If the Client must submit a purchase order to TT before the Client can accept an invoice issued by TT, the Client must supply the purchase order to TT no later than 72 hours after completion of the relevant Services.
7.3 Subject to clause 7.4, the Client must pay TT's invoices in cash on completion of the delivery of the Services in accordance with clause 9. TT will not release the Asset until payment has been received in full.
7.4 If TT has agreed in writing to provide credit terms to the Client, all invoices must be paid within the period notified by TT to the Client from time to time.
8. Deposit
TT reserves the right, at its sole discretion, to require the Client to provide a deposit as a condition of providing Services to the Client. The amount and terms of such deposit will be determined by TT based on factors including, but not limited to, the Client's creditworthiness, payment history, and the scope of the Services requested. Any required deposit will be held by TT as security for payment obligations under this document. Failure to provide a required deposit may result in the denial or suspension of Services.
9. Delivery of Services
9.1 Delivery of the Services will take place when:
9.1.1 TT provides the Services at TT's address; or
9.1.2 at TT's sole discretion, TT provides the Services at the Client's nominated address.
9.2 Where TT is to provide any Services at the Client's nominated address, then the Hourly Rate Charge included in the Price will be calculated based on the time from which TT's representatives depart from their normal place of work to provide the Services until those representatives return to their normal place of work, will include a charge for mileage (calculated at TT's standard rates from time to time) and the Parts Price for any Parts purchased in connection with the Services.
9.3 Delivery of any Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this document.
9.4 The failure of TT to deliver the Services will not entitle either party to treat this contract as repudiated.
9.5 TT will not be liable for any loss or damage whatsoever due to failure to deliver the Services (or any of them) where the failure is due to circumstances beyond the reasonable control of TT.
10. Retention of title and risk
10.1 Risk
10.1.1 Risk in each Part passes to the Client upon delivery.
10.1.2 If any of the Parts are damaged or destroyed following delivery but prior to title passing to the Client, TT is entitled to receive all insurance proceeds payable for the Parts. The production of these terms and conditions by TT is sufficient evidence of TT's rights to receive the insurance proceeds without the need for any person dealing with TT to make further enquiries.
10.2 Title
10.2.1 TT and Client agree that the title of any Parts will not pass until:
(a) the Client has paid TT in full (in cleared funds) for all amounts that the Client owes TT from time to time; and
(b) the Client has met all of its other obligations to TT in accordance with any contract in force between TT and the Client from time to time.
10.2.2 Receipt by TT of any payment will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then TT's ownership or rights in respect of the Parts will continue.
10.3 Registration of TT's security interest
10.3.1 This document is a security agreement for the purposes of the PPSA. The Client acknowledges that it has granted TT a security interest in respect of all Parts (and in respect of all Assets of the Client in respect of which Services were provided) ('Secured Property') and their respective proceeds of sale, which security interest is a purchase money security interest to the extent that it secures payment of all or part of the Price for particular Services.
10.3.2 The Client consents to TT perfecting any security interest arising in connection with this document by registering a financing statement on the PPSR and any other applicable security registers in any manner it considers appropriate. The Client agrees to do anything TT reasonably asks to ensure that the security interest:
(a) is enforceable, perfected and otherwise effective; and
(b) has priority over all other security interests.
10.3.3 The Client agrees to pay or reimburse TT for any fees or charges for any PPSR or other registrations contemplated by this clause 10.
10.3.4 TT agrees to discharge the security interest arising under this clause 10.3 that is registered on the PPSR within a reasonable period after all relevant Services have been paid for in full.
10.4 Dealing with Parts
Until title to the Parts passes to the Client in accordance with clause 10.2.1:
10.4.1 TT does not consent to the Client selling or otherwise disposing of the Secured Property unless TT has provided its prior written consent;
10.4.2 the Client must keep the Secured Property:
(a) to the extent reasonably possible, stored separately from other goods, in their original packaging and marked as the property of TT;
(b) in a satisfactory condition; and
(c) insured for their full replacement value.
10.4.3 the Client must not do any of the following in relation to any of the Secured Property (except where expressly permitted by this document):
(a) create or allow any interest in, or dispose or part with possession of, the Secured Property;
(b) allow the Secured Property to be taken outside of Australia;
(c) to the extent reasonably possible, allow the Secured Property to become an accession to or commingled with any other property; or
(d) grant any security interest in respect of accounts owed to it in relation to the Secured Property,
without TT's prior written consent.
10.5 Proceeds
If the Client sells or disposes of any Secured Property (whether or not consent has been provided in accordance with clause 10.4.1), TT's security interest continues in any proceeds of sale. The Client must pay all monetary proceeds, up to the amount owed, into a separate account until they are paid to TT, and must not mix them with any other amount or use them to pay a debt.
10.6 Enforcement and right of entry
10.6.1 In the event that the Client fails to pay for the Services in accordance with this document or is in breach of clause 10, TT may exercise any rights it has to enforce its security interest in the Secured Property.
10.6.2 The Client:
(a) grants TT and its representatives an irrevocable licence to enter any land or premises for the purpose of inspecting, seizing or otherwise enforcing TT's rights in respect of the Secured Property under this document or ensuring the Client's compliance with clause 10; and
(b) indemnifies TT for any claims for damage to property or personal injury as a result of exercising those rights.
10.6.3 If TT seizes or retakes possession of any Secured Property, it may deal with that Secured Property as it thinks fit.
10.7 Contracting out of enforcement and notice provisions
10.7.1 The Client waives its right to receive any notice (including notice of a verification statement) that is required by the PPSA unless the notice is required by the PPSA and cannot be excluded.
10.7.2 The Client agrees not to exercise its rights to make any request of TT under section 275 of the PPSA. However, this does not limit the Client's rights to request information other than under section 275 of the PPSA. Neither the Client nor TT will disclose any information of the kind mentioned in section 275(1) of the PPSA unless section 275(7) of the PPSA applies.
10.7.3 To the extent permitted by law, the parties contract out of and the Client waives its rights under the following provisions of the PPSA:
(a) section 95 (notice of removal of accession), to the extent that it requires TT to give a notice to the Client;
(b) section 96 (when a person with an interest in the whole may retain an accession);
(c) section 121(4) (enforcement of liquid assets - notice to grantor);
(d) section 125 (obligation to dispose of or retain collateral);
(e) section 130 (notice of disposal of collateral), to the extent that it requires TT to give a notice to the Client;
(f) section 132(3)(d) (contents of statement of account after disposal);
(g) section 132(4) (statement of account if no disposal);
(h) section 135 (notice of retention of collateral);
(i) section 142 (redemption of collateral);
(j) section 143 (reinstatement of security agreement); and
(k) for the purposes of section 115(7), sections 132 (secured party to give statement of account) and 137(3) (persons entitled to notice may object to proposal).
10.8 Changes in Customer's details
The Client must provide TT with at least 28 days prior written notice before it:
10.8.1 changes its name or undergoes any Change of Control;
10.8.2 changes its place of registration or incorporation; or
10.8.3 changes or applies for an Australian Company Number, Australian Business Number, Australian Registered Body Number or Australian Registered Scheme Number.
If any of the above events referred to in clauses 10.8.1 to 10.8.3 occur, TT reserves the right, in its sole discretion, to require the Client to:
10.8.4 pay on demand any amounts invoiced to but unpaid by the Client, including those related to the Client's credit account; and
10.8.5 submit a new credit application.
10.9 Definitions
Words and phrases used in clause 10 that have defined meanings in the PPSA have the same meaning as in the PPSA, unless the context indicates otherwise.
11. Defects
11.1 Deemed acceptance
The Client is deemed to have accepted the Services if the Client fails to give notice of rejection in accordance with clause 11.2.
11.2 Rejection of Services
The Client:
11.2.1 subject to clause 11.2.2 and 11.4, may notify TT that it intends to reject the Services if any Services delivered to the Client do not comply with clause 12; and
11.2.2 must give TT written notice of its intention to reject the Services (including detailed reasons for its rejection) in the case of a defect that is apparent on normal visual inspection, within 24 hours of the vehicle in respect of which the Services were provided returning to the control of the Client.
11.3 Remedies for defective Services
11.3.1 If the Client believes the Services are defective in any way, the Client must notify TT and allow TT a reasonable opportunity to inspect the Services.
11.3.2 TT must be given a reasonable time and opportunity to rectify any defects or deficiencies in the Services before the Client seeks any other remedy.
11.3.3 If, following inspection of the Services by TT under clause 11.3.1, TT determines that the Services fail to comply with clause 12, TT's liability is limited to either (at TT's sole discretion):
(a) resupplying the Services; or
(b) if the defect or deficiency relates to a Part, replacing the rejected Parts or supplying equivalent goods.
11.3.4 For the avoidance of doubt, any repaired or replacement Parts supplied by TT under this clause 11 will be subject to the applicable manufacturer's warranty in accordance with clause 12.3.
11.3.5 Notwithstanding anything to the contrary in this document, if the Client believes that a Part is defective in any way, TT is permitted to retrieve the Part from the Client for inspection and assessment by the supplier of the Part. Pending the outcome of this assessment, TT will, at no initial cost to the Client:
(a) provide a replacement Part; and
(b) retain the allegedly defective Part for inspection and determination by the supplier as to whether it is defective.
11.3.6 If the supplier of the Part:
(a) determines that the Part is defective and accepts liability, the replacement Part will be provided at no cost to the Client;
(b) does not accept liability for the defect, the Client will be responsible for the cost of the replacement Part, along with any associated costs, including TT's time and labour in effecting the replacement.
11.4 Limitation of liability due to Client's action
TT is not liable for the failure of any Services to comply with clause 12, where:
11.4.1 the Client makes any further use of those Services after giving notice in accordance with clause 11.2.2;
11.4.2 the defect arises because the Client failed to follow best industry practice or TT's oral or written instructions for the storage, transportation, commissioning, installation, use or maintenance of the Assets the subject of Services;
11.4.3 the Client alters or repairs Assets the subject of Services (or Parts supplied with those Services) without the written consent of TT; or
11.4.4 the defect arises from either:
(a) fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions undertaken by the Client or any person for which they are responsible or which they engage; or
(b) abuse, accidental damage, or incorrect use of the Asset, including any consequential loss.
12. Warranty
12.1 No further warranty
Except as expressly set out in clause 12, TT excludes all express or implied conditions, guarantees, representations or warranties in relation to the Services to the maximum extent permitted by law.
12.2 Warranty
Subject to clause 11.4, the Company warrants and represents that it:
12.2.1 will provide the Services in a proper, timely and professional manner and with due care, skill and diligence;
12.2.2 has obtained all licences, permissions and authorisations necessary to provide the Services;
12.2.3 will ensure the Services will be:
(a) fit for the purpose or intended use for which they are being provided by the Company and will comply with all applicable laws;
(b) free from errors, faults or defects in material and will remain so until the earlier of 12 months from the date of delivery of the Services and when the relevant Asset has travelled an additional 50,000 kilometres from the date of delivery of the Services;
12.2.4 has the skills, qualifications, expertise and experience necessary to properly provide the Services; and
12.2.5 unless otherwise agreed between the parties, will only use parts in an Asset (including when repairing or replacing) which are new and have not been previously used, and that are free from all liens, charges and encumbrances of any kind.
12.3 Third party warranties for Parts
12.3.1 Subject to clause 12.3.2, TT must take all actions reasonably necessary, to the extent that it is legally able to, to assign in favour of the Client the benefit of any manufacturer's warranty applicable to Parts supplied in connection with the Services.
12.3.2 In the case of second-hand Parts supplied by TT to the Client, the Client acknowledges that it has had full opportunity to inspect those Parts and accepts them with all faults. Accordingly, no warranty whether express or implied, statutory or otherwise, is provided by TT as to the quality or suitability of the second-hand Part(s) for any purpose, and TT will not be responsible for any consequential loss or damage arising out of the use of second-hand Parts.
13. Intellectual Property
13.1 Nothing in this document affects the ownership of each parties Intellectual Property Rights, unless the parties agree otherwise in writing.
13.2 The Client grants TT a non-exclusive, revocable, sublicensable and non-transferable licence to use the Intellectual Property Rights of the Client solely for the purposes of the provision of the Services as contemplated by this document.
13.3 Where TT has designed, drawn or created specific terms for the Client, then the copyright in those designs and drawings and items will remain vested in TT, and will only be used by the Client at TT's discretion.
13.4 The Client warrants that all the use by or reliance on designs or instructions provided by or on behalf of the Client to TT will not cause TT to infringe any third party's Intellectual Property Rights and the Client agrees to indemnify TT against any action taken by a third party against TT in connection with any alleged infringement of the Client's or any third party's Intellectual Property Rights.
13.5 This clause 13 survives the expiry or termination of this document.
14. Default & consequences of default
14.1 If the Client fails to pay any sum payable by it under this document at the time and otherwise in the manner provided in this document, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause 14.1 is in addition to any other remedies that the other party may have in respect of such late payment.
14.2 Notwithstanding clause 14.1, the Company may only charge interest in the manner set out in that clause on the undisputed amounts of an invoice due and payable by the Client if each of the following conditions are satisfied:
14.2.1 the Client has failed to pay the amount on or before the prescribed date for payment; and
14.2.2 the Company issues a written notice to the Client to remedy this failure to pay and the Client does not pay the amount within 5 business days.
14.3 All overdue invoices incur an additional fee of one hundred dollars ($100.00) for administration fees which sum will become immediately due and payable.
14.4 If the Client defaults in payment of any invoice when due, the Client will indemnify TT from and against all costs and disbursements incurred by TT in pursuing the debt including legal costs (on a full indemnity basis) and the costs of any collection agency engaged by TT in connection with the collection of the debt.
14.5 Without prejudice to any other remedies TT may have, if at any time the Client is in breach of any obligation (including those relating to payment), suffers an Insolvency Event or TT reasonably believes the Client may suffer an Insolvency Event, TT may suspend or terminate the supply of Services to the Client and any of its other obligations under this document. TT will not be liable to the Client for any loss or damage the Client suffers because TT has exercised its rights under this clause.
14.6 Without prejudice to TT's other remedies at law TT will be entitled to cancel all or any Services and/or part of any order of the Client which remains unfulfilled and all amounts owing to TT will, whether or not due for payment, become immediately payable in the event that:
14.6.1 any amount payable to TT becomes overdue, or in TT's opinion the Client will be unable to meet its payments as they fall due; or
14.6.2 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.
14.7 The Client acknowledges and agrees that TT reserves the right to engage a debtor finance facility to manage the recovery of any overdue amounts under this document. In the event that TT elects to utilise such a facility, the Client agrees to:
14.7.1 execute any necessary documents or agreements required by the debtor finance provider;
14.7.2 comply with any reasonable requests or requirements imposed by the debtor finance provider in relation to the outstanding debts; and
14.7.3 direct all payments relating to the outstanding debts as instructed by TT or the debtor finance provider.
The engagement of a debtor finance facility by TT does not limit or affect TT's rights to charge interest on overdue amounts or to pursue any other remedies available under this document or at law.
15. Indemnity
15.1 Except to the extent caused or contributed to by the negligent act or omission, wilful misconduct or breach of this document by TT or any of its Personnel, the Client indemnifies TT against any losses, liabilities, costs, charges or expenses and all interest, penalties and legal costs (calculated on a solicitor client basis) and all other professional costs and expenses suffered or incurred by TT arising out of or in connection with:
15.1.1 any breach of this document by the Client;
15.1.2 any act or omission of the Client which causes TT to breach a law; and
15.1.3 any negligent conduct, omission or wilful misconduct of the Client.
15.2 The indemnities under this clause 15 survive termination or expiry of this document.
16. Limitation of Liability
16.1 Maximum aggregate liability
Subject to the other terms of this clause 15, TT's maximum aggregate liability to the Client is limited to:
16.1.1 the remedies at clause 11.3.3 in respect of defective Parts rejected by the Client in accordance with clause 11.3.3; and
16.1.2 the aggregate amount of the Fees received by TT in the 12 months prior to the event giving rise to the relevant Claim for any other Loss arising out of, or in connection with, this document, including any breach by TT of this document, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis.
16.2 Exclusion of special, indirect or consequential loss
Subject to clause 16.3 but notwithstanding any other term of this document, each party excludes any liability to the other, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this document, including any loss of profits, loss of production, loss of agreements or contracts, loss of, or damage to, goodwill, loss of reputation, loss of sales or business, loss of business opportunity, loss of anticipated saving, loss, or corruption, of software, data or information, and special, indirect or consequential damage.
16.3 Liabilities that are not limited or excluded
16.3.1 Nothing in this document is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the Australian Consumer Law, or the exercise of a right conferred by such a provision, or any liability of TT in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the Australian Consumer Law to a supply of goods or services where to do so would be unlawful.
16.3.2 Nothing in this document limits or excludes a party's liability:
(a) for death or personal injury caused by its negligence or wilful misconduct or that of its employees, as applicable;
(b) for fraud or fraudulent misrepresentation by it or its employees, as applicable; or
(c) where liability cannot be limited or excluded by applicable law.
17. Dispute resolution
17.1 General
17.1.1 The parties must try to resolve any dispute or claim in connection with this document or its performance ('Dispute') in accordance with this clause 17. The parties must not commence any Court proceedings (other than an application for an urgent interlocutory or declaratory relief) until these proceedings are exhausted.
17.1.2 All procedures in this clause 17 will occur in Sydney, New South Wales.
17.1.3 This clause 17 continues indefinitely and survives termination of this document.
17.2 Negotiation
17.2.1 A party ('Disputing Party') may at any time give the other party notice of a Dispute ('Dispute Notice'). The date upon which the Dispute Notice is delivered is referred to as the Dispute Notice Date.
17.2.2 The party which is not the Disputing Party must deliver to the Disputing Party a written response ('Answer') within 10 business days after the Dispute Notice Date. Both the Dispute Notice and the Answer must include:
(a) a statement of the relevant party's position and a summary of arguments supporting that position; and
(b) what action (if any) that party thinks will resolve the Dispute.
17.2.3 Representatives of all parties who are authorised to resolve the Dispute must meet within 20 business days of the Dispute Notice Date to negotiate in good faith to resolve the Dispute.
17.3 CEO meeting
17.3.1 If the parties do not resolve the Dispute within 20 business days of the Dispute Notice Date (or such other further period as agreed in writing between the parties), then either party may give the other party a written notice requiring the dispute to be escalated to the Chief Executive Officer (or equivalent) of each party ('Dispute Escalation Notice').
17.3.2 On receipt of a Dispute Escalation Notice, the Chief Executive Officers (or equivalent) must meet and engage in good faith negotiations to resolve the matters the subject of the Dispute Notice within 10 business days of the date the Dispute Escalation Notice (or such further period as agreed in writing between the parties).
17.4 Mediation
If the Dispute has not resolved within 20 business days of the date of the Dispute Escalation Notice, it will be mediated in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation current at the Dispute Notice Date. Those Guidelines are incorporated into this document. Where there is any inconsistency between those Guidelines and this document, this document prevails.
17.5 Injunctive relief
Nothing in this clause 17 will prevent any party from seeking urgent injunctive or declaratory relief.
18. Termination
18.1 Termination rights
18.1.1 Either party (the non-defaulting party) may terminate this document and all Work Orders which are not completed at the relevant date with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this document on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a Material Breach of any term of this document and either:
(i) the breach is irremediable; or
(ii) the breach is remediable and the other party fails to remedy that breach within a period of fourteen (14) days after the other party has, or is deemed to have, received written notice requesting it to do so;
(c) the other party repeatedly breaches one or more terms of this document in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this document; or
(d) an Insolvency Event occurs in relation to the other party.
18.1.2 For the purposes of clause 18.1.1(b), a Material Breach means a breach (including an anticipatory breach) that has a material adverse effect on the benefit which the terminating party would otherwise derive from the arrangements between the parties under this document during the term of their agreement. In deciding whether any breach is material no regard will be had to whether it occurs by some accident, mishap, mistake or misunderstanding.
18.1.3 If TT proposes an amendment to this document in accordance with clause 28.6, it must notify the Client in writing setting out the details of the proposed amendment ('Amendment Notice'). The Client may, within fourteen (14) days of receiving the Amendment Notice, notify TT in writing that it does not agree to the proposed amendment ('Refusal Notice'). If the Client does not provide a Refusal Notice within this period, the amendment will take effect and become binding on the Client on the fifteenth (15th) day after the date of the Amendment Notice.
18.1.4 If the Client provides a Refusal Notice in accordance with clause 18.1.3, the Chief Executive Officers (or equivalents) of each party must meet within fourteen (14) days of the Refusal Notice (or such longer period as agreed in writing) and negotiate in good faith with regard to agreeing the application of the proposed amendment or an alternative acceptable to TT and the Client ('Agreed Amendment').
18.1.5 If, following the CEO meeting referred to in clause 18.1.4, neither the proposed amendment nor any alternative is agreed, TT may elect to:
(a) proceed with the proposed amendment set out in the Amendment Notice by giving the Client written notice to that effect ('Final Notice'); or
(b) not pursue the proposed amendment, in which case the proposed amendment will not impact this document, which will continue in full force as if the relevant Amendment Notice had not been served.
18.1.6 If, following the CEO meeting referred to in clause 18.1.4, there is an Agreed Amendment, that Agreed Amendment will take effect from the day after the CEO meeting and be deemed to amend this document with effect from that date.
18.1.7 If TT gives a Final Notice, the Client may terminate this document by giving written notice to TT within fourteen (14) days of the date of the Final Notice. If the Client does not terminate within this period, the amendment will become binding on the Client on the fifteenth (15th) day after the date of the Final Notice.
18.1.8 The rights available to a party under this clause 18 do not affect any other right or remedy otherwise available to it.
18.2 Effect of termination
18.2.1 Subject to clause 18.2.2, in the event of any termination of this document under clause 18:
(a) the Client will remain liable to pay all Prices properly accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, including Prices incurred by TT for the purchase of materials or parts for Services to be provided to the Client, where the purchase had been notified to and agreed with the Client);
(b) TT will send to the Client as soon as reasonably practicable after termination of this document an invoice for the balance of any unbilled Prices accrued up to and including the date of termination; and
(c) the Client must pay within thirty (30) days all outstanding amounts invoiced by TT under clause 18.2.1(b).
18.2.2 In the event of termination of this document under clause 18.1, any outstanding Work Orders or Assets undergoing maintenance as of the termination date will remain subject to the terms of this document as they existed immediately prior to the termination date until those Services have been completed and the Prices in respect of those Services have been paid for in full.
19. GST
19.1 Unless GST is expressly included, the consideration to be paid or provided under this document for any supply made under or in connection with this document does not include GST.
19.2 To the extent that any supply made under or in connection with this document is a taxable supply, the GST exclusive consideration to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is to be paid or provided.
19.3 A party's right to payment under clause 19.2 is subject to a valid tax invoice being delivered to the party who is the recipient of the taxable supply.
19.4 To the extent that a party is required to reimburse or indemnify another party for a loss, cost or expense incurred by that other party, that loss, cost or expense does not include any amount in respect of GST for which that other party is entitled to claim an input tax credit.
19.5 Words or expressions used in this clause 19 which have a particular meaning in the GST law (as defined in the GST Act), any applicable legislative determinations and Australian Taxation Office public rulings, have the same meaning, unless the context otherwise requires.
20. Guarantor
20.1 In consideration of TT, at the request of the Guarantor, having supplied or agreed to supply on Services to the Client (including on credit if applicable), the Guarantor agrees with TT that:
20.1.1 the Guarantor guarantees payment of the Guaranteed Monies payable by the Client to TT and the performance by the Client of all of its obligations owed to TT;
20.1.2 the Guarantor as a separate and principal covenant agrees to indemnify and keep indemnified TT against all liability or loss arising from and any costs, charges or expenses of any failure by the Client to make any payment of the Guaranteed Monies to TT or failure to perform any obligations of the Client in accordance with this document.
20.2 The Guarantor waives all rights as surety whether legal, equitable, statutory or otherwise insofar as the same may be inconsistent with this Guarantee and agrees to accept liability for payment of the Guaranteed Monies and the obligations of the Client as if the Guarantor was primarily liable therefore.
20.3 This Guarantee will be a continuing guarantee for the purpose of securing the payment of the whole of the Guaranteed Monies and the performance of the whole of the obligations by the Client notwithstanding any partial payment or performance.
20.4 This Guarantee will not be prejudiced and the Guarantor will not be released either in whole or in part nor will TT's rights or remedies be in any way restricted by any of the following matters:
20.4.1 any release, variation, exchange, renewal, modification or novation in the terms and conditions of any Contract or the credit account upon which TT supplies Services to the Client;
20.4.2 any time or other indulgence which TT may grant to the Client or any other person liable or who might become liable in respect of all or any part of the Guaranteed Monies;
20.4.3 the fact that the Guaranteed Monies or any part thereof may not be recoverable or that the Client or any other person liable to pay the Guaranteed Monies may not have signed a guarantee or may be discharged from all or any of their respective obligations to make payment or for any reason other than the same will have been paid;
20.4.4 the death, bankruptcy, lunacy or other incapacity of the Client or Guarantor;
20.4.5 the administration in insolvency of the Client or Guarantor; or
20.4.6 the dissolution of the partnership or the retirement of any partner from such partnership if the Client or the Guarantor is a partnership.
20.5 The Guarantor charges all of the Guarantor's right, title and interest in any land and personal property held now or in the future by the Guarantor to secure the payment of the Guaranteed Monies. The Guarantor consents to TT lodging a caveat or caveats (and a PPSR financing statement) to note TT's interest and security interest under this clause. If a demand is made by TT, the Guarantor agrees to immediately execute a mortgage and/or other instrument of security, in terms satisfactory to TT to further secure payment of the Guaranteed Monies.
20.6 A statement in writing made up from the books of TT of the amount due or owing of the Guaranteed Monies at the date in such statement will be prima facie evidence that such amount is so due and owing.
20.7 Any notice or demand by TT hereunder will be signed by a duly authorised officer of TT or its solicitor and be given to the Guarantor by posting it to the Guarantor at:
20.7.1 the Guarantor's address appearing in the Credit Application Form signed by the Client;
20.7.2 the Guarantor's last place of business or residence as known by TT; or
20.7.3 any other address of the Guarantor known to TT.
20.8 Where there is more than one person included in the expression 'Guarantor' a notice of demand duly given to one of such persons will be deemed to be given to all of such persons.
20.9 In the construction of this Guarantee unless the context otherwise requires:
20.9.1 'administration in insolvency' means bankruptcy, winding up (voluntary or compulsory), official management, composition arrangement with or assignment for the benefit of creditors and any administration in equity or otherwise of the estate or assets in whole or in part of the Client or the Guarantor;
20.9.2 'Contract' means each and every contract, Services order and purchase order between TT and the Client for the supply of Services;
20.9.3 'Guarantee' means the guarantee provided by the Guarantor pursuant to this clause 20;
20.9.4 'Guaranteed Monies' means:
(a) all monies which may now or hereinafter be due and owing by the Client to TT in respect of the supply of any Services by TT to the Client or to any third party at the order or direction of the Client;
(b) all monies, costs, charges and expenses incurred by TT in the preparation, execution or enforcement of any power or remedy which TT has or is entitled to for any reason have against the Guarantor or the Client; and
(c) interest on all such monies for the time being remaining unpaid.
20.10 The Guarantor acknowledges that the Guarantor:
20.10.1 has read and understood the terms contained in this document;
20.10.2 has had an adequate and reasonable opportunity to obtain legal advice as to the provisions and implications of this Guarantee; and
20.10.3 has signed this document of their own free will.
21. Privacy
21.1 If TT collects, holds, uses or discloses Personal Information in the course of or relating to this document, TT will:
21.1.1 handle all Personal Information in accordance with its Privacy Policy;
21.1.2 only use Personal Information for the purposes set out in the Privacy Policy; and
21.1.3 not disclose Personal Information to a person (including any representative) not located in Australia without the express written consent of the Client.
21.2 The Client and/or the Guarantor/s (herein referred to in this clause as the Client) agree for TT to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by TT. The Client agrees that TT may exchange information about the Client with those credit providers either named as trade reference by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
21.2.1 to assess an application by the Client;
21.2.2 to notify other credit providers of a default by the Client;
21.2.3 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
21.2.4 to assess the creditworthiness of the Client.
21.3 The Client understands that the information exchanged may include anything in relation to the Client's creditworthiness, credit standing, credit history or credit capacity to the extent that credit providers are permitted to exchange such information under the Privacy Act.
21.4 The Client consents to TT being given a consumer credit report to collect overdue payment on commercial credit in accordance with Section 18K(1)(h) of the Privacy Act.
21.5 The Client agrees that personal credit information provided may be used and retained by TT for the following purposes (and for other purposes as will be agreed between the Client and TT or required by law from time to time):
21.5.1 the provision of Parts and/or Services; and/or
21.5.2 the marketing of Parts and/or Services by TT, its agency or distributors; and/or
21.5.3 analysing, verifying and/or checking the Client's credit, payment and/or status in relation to the provision of Parts and/or Services; and/or
21.5.4 processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client, and/or enabling the daily operation of Client's account and/or the collection of amounts outstanding in the Client's account in relation to the Parts and/or Services.
21.6 TT may give information about the Client to a credit reporting agency for the following purposes (without limitation):
21.6.1 to obtain a consumer credit report about the Client;
21.6.2 allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
21.7 The information given to the credit reporting agency may include:
21.7.1 personal particulars (the Client name, sex, address, previous addresses, date of birth, name of employer and driver's license number);
21.7.2 details concerning the Client's application for credit or commercial credit and the amount requested;
21.7.3 advice that TT is a current credit provider to the Client;
21.7.4 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;
21.7.5 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;
21.7.6 information that, in the opinion of TT, the Client has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Clients credit obligations);
21.7.7 advice that cheques drawn by the Client for one hundred dollars ($100.00) or more, have been dishonoured more than once;
21.7.8 that credit provided to the Client by TT has been paid or otherwise discharged.
22. Confidentiality
Without limiting the right of TT or the Client to use their own Confidential Information as they deem fit, each party agrees in favour of the other party that all Confidential Information provided to the recipient by the discloser or of which the recipient becomes aware under this document:
22.1 will be kept strictly confidential by the recipient;
22.2 will not without the discloser's consent be disclosed or divulged to any third party, reproduced or used for any purpose or enterprise;
22.3 will be safely and securely stored by the recipient when not in use; and
22.4 will remain the absolute and exclusive property of the disclosing party.
23. Unpaid Seller's Rights
23.1 Where the Client has left any item with TT for repair, modification, exchange or for TT to perform any other Services in relation to the item and TT has not received or been tendered the whole of the Price, or the payment has been dishonoured, TT will have:
23.1.1 a lien on the item;
23.1.2 the right to retain the item until the Price is paid in full;
23.1.3 the right to sell the item; and
23.1.4 the right to apply all or part of the proceeds of the sale of the item to satisfy the Price, including any accrued interest due to TT and any costs incurred by TT in relation to the sale and any other Guaranteed Monies.
23.2 TT's lien on the item will remain in effect notwithstanding the commencement of legal proceedings or the issuance of a judgement for the Price.
24. Media release
24.1 The Client authorises TT and its personnel to:
24.1.1 take audio and video recordings and photographs in connection with the Services ('Recordings');
24.1.2 take Recordings that include the Client's name, image, brand, likeness, appearance, performance and details about the Client (together, the 'Client's Branding');
24.1.3 edit to include the Client's Branding with the footage of others and with sound effects, special effects and music; and
24.1.4 make multiple copies of, adapt, extract or edit, translate or dub into foreign languages the Recordings,
in each case of the cases above, for any purpose associated with TT's business ('Purpose').
24.2 The Client releases TT and its personnel, licensees and assigns from and against any and all claims which the Client has or may have arising out of the production, distribution, broadcast or exhibition of the Recordings.
25. Non-disparagement and non-solicitation
25.1 Except where prohibited by law, the parties agree that they will not at any time speak or act in any manner that may have the effect of reflecting adversely upon the reputation, business or goodwill, or which is intended to harm such reputation, business or goodwill, of the other party, and that neither party will engage in any other disparaging conduct or communications with respect to the other party. Such conduct as described in this clause will be deemed a material breach of this document.
25.2 During the period commencing on the date of this document and continuing until the date that is 12 months following the termination or expiration of this document, neither party will make any solicitation to employ the other party's personnel involved in the performance of this document without the prior written consent of the other party. For the purposes of this 25.2, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, will not be construed as a solicitation or inducement, and the hiring of any such employees or independent contractor who freely responds is not a breach of this clause.
26. Relationship of the parties
The relationship between the Client and TT is of a principal and an independent contractor. Nothing in the document constitutes or deems the Company or any of its Personnel, to be an employee, agent, partner or trustee of the Client.
27. Consents, approvals, requests and notices
A consent, approval, request or notice, if validly given, is taken to have been received:
27.1.1 if hand delivered, on delivery;
27.1.2 if sent from and to a place within Australia by regular post, at 9.00 am on the sixth business day after the date of posting;
27.1.3 if sent by email, when the email (including any attachment) is sent to the receiving party at the receiving party's email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent,
but if the delivery, receipt or transmission is not on a business day or is after 5.00 pm on a business day, the notice is taken to be received at 9.00 am on the next business day after that delivery, receipt or transmission.
28. General
28.1 Assignment or other dealings
28.1.1 The Client must not assign, novate, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this document without the prior written consent of TT (consent must not be unreasonably withheld), except where this document expressly provides otherwise.
28.1.2 For the purposes of clause 28.1.1, any Change of Control of the Client, is deemed to be an assignment of rights under this document requiring consent.
28.2 Costs
Except as expressly provided in this document, each party must pay its own costs incurred in connection with:
28.2.1 the negotiation, preparation and execution of this document and any documents referred to in it; and
28.2.2 performing its obligations under this document.
28.3 Binding contract
This document sets the terms of the supply of Services and there is no need for TT to sign any counterpart of the Credit Application or these Terms to give effect to a binding contract on these Terms.
28.4 Severability
28.4.1 If any provision of this document is or becomes invalid or unenforceable under any relevant law, it is severed to the extent that it is invalid or unenforceable whether it is in severable terms or not.
28.4.2 Clause 28.4.1 does not apply if the severance of a provision of this document in accordance with that clause would materially affect or alter the nature of effect of the parties' obligations under this document.
28.5 Entire agreement
This document states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.
28.6 Amendments
TT reserves the right to review this document at any time. If following any such review, TT proposes to amend this document, TT will issue an Amendment Notice to the Client in accordance with clause 18.1.3. Any such amendment will only take effect in accordance with the procedures set out in clauses 18.1.3 to 18.1.7 (inclusive). For clarity, any Services will be governed by the version of this document in force at the time the order for those Services was accepted by TT.
28.7 Exercise of rights
28.7.1 No party is required to act reasonably in exercising any right, power, authority, discretion or remedy under or in connection with this document, including the granting or withholding of any approval or consent, unless expressly required to do so under this document.
28.7.2 Any party may (without being required to act reasonably) make any consent or approval required to be given by it under or in connection with this document, or a waiver of any of its rights, powers, authority, discretion or remedies arising under or in connection with this document, subject to conditions that must be complied with by the party seeking to rely on the consent, approval or waiver.
28.8 Further action
Each party must at its own expense do all things (including completing and signing all documents) reasonably requested by the other party that are necessary to:
28.8.1 bind the party and any other person intended to be bound by this document;
28.8.2 show that it is complying with this document; and
28.8.3 give full effect to this document and the transactions contemplated by this document,
and use all reasonable endeavours to procure that any third parties do the same.
28.9 Governing law and jurisdiction
28.9.1 This document is governed by the law in force in New South Wales.
28.9.2 Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in New South Wales and courts of appeal from them in respect of any proceedings arising out of or in connection with this document.
28.9.3 Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 28.9.2 on the basis that:
(a) any proceeding arising out of or in connection with this document has been brought in an inconvenient forum; or
(b) the courts described in clause 28.9.2 do not have jurisdiction.
28.10 No reliance
No party has relied on any statement, representation, assurance or warranty made or given by any other party, except as expressly set out in this document.
28.11 No waiver
28.11.1 No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this document unless the other party expressly grants a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.
28.11.2 Words or conduct referred to in clause 28.11.1 include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel.
28.12 Set off
The Client will not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by TT.
28.13 Subcontracting
TT may license or sub-contract all or any part of its rights and obligations at its sole discretion provided that TT will remain liable to the Client for the performance of such licensee or sub-contractor.
28.14 Force Majeure
Neither party will be liable for any default in the provision of the Services or compliance with its obligations under this document (other than the payment of the Price) due to an epidemic or pandemic, act of God, war, terrorism, strike, lock-out, industrial actions, fire, flood, storm or other event beyond the reasonable control of either party.
28.15 Enforcement
The failure by TT to enforce any provision of these terms and conditions will not be treated as a waiver of that provision, nor will it affect TT's right to subsequently enforce that provision.