Terms and Conditions

1.1   These Terms and Conditions (‘Terms’) apply to all work performed by Electrical Instrumentation Fire Industries Pty Ltd ACN 611 783 405 ATF EIF Industries Trust ABN 69 522 094 949 t/a EIF Industries (‘EIF’). No other terms apply.
1.2   EIF will provide a written quote to you the client (‘Client’) outlining details of the Services and details of EIF’s fees for the Services (‘Purchase Order’). A Purchase Order remains valid and open for acceptance by the Client for 21 calendar days from the date of issue. EIF reserves the right to amend the Purchase Order in writing to the Client at any time prior to the Client’s acceptance of it. If the Client agrees to the Purchase Order, the Client agrees to these Terms.
1.3   These Terms and the Purchase Order comprise the whole of the agreement between the parties (‘Agreement’) and replace any and all prior agreements and understandings between the parties, as to the engagement for the Services.
1.4   If there is any inconsistency between a provision in the Purchase Order and a provision in these Terms, the provision in the Purchase Order prevails, but only to the extent of the inconsistency.
1.5   The Agreement can only be varied if in writing and executed by all the parties.
1.6   If the Client requests any variations to the Services, this constitutes a request for variation of the Agreement, and EIF may agree to that variation also dependent on the Client’s acceptance to the updated fees that may apply and as advised in writing by EIF to the Client.

2.1   The Client engages EIF to perform, and EIF agrees to the engagement for the performance of, the services in the Purchase Order (‘Services’).
2.2   The engagement pursuant to clause 2.1 will start from the date of the Agreement and will continue until the engagement for the Services has been completed or until the engagement is terminated in accordance with clause 9.
2.3   EIF will perform the Services will due care and skill. EIF will provide ongoing updates to the Client on the Services.
2.4   The Services are to be performed by EIF and its Personnel only and the Services cannot be subcontracted to a third party, without the Client’s prior, express, written consent.

3.1   The Client acknowledges and agrees to the following:
(a) The Client has provided EIF with all information, documents, and instructions necessary for EIF to perform the Services, or the Client will provide all such further information, documents, and instructions that EIF may request from the Client from time to time during the performance of the Services.
(b) The Client must give EIF the information, documents, and instructions including pursuant to clause 3.1(a) and EIF may not accept the same from a third party, unless there is written legal authority (such as a power of attorney) permitting for this to occur, and the Client has provided EIF with a signed and certified copy of such document.
(c) EIF and its Personnel may rely on the information, documents, and instructions the Client provides pursuant to clauses 3.1(a) and 3.1(b) and that the Client otherwise provides to EIF during EIF’s performance of the Services.
(d) The Client must advise EIF in writing prior to EIF’s issue of the Purchase Order of any hazardous or harmful materials or conditions (including but not limited to asbestos) related to EIF’s performance of the Services. Should any such hazardous materials or conditions be present and were not disclosed in writing to EIF prior to the Purchase Order, EIF reserves the right to vary the Purchase Order accordingly.
(e) EIF and its Personnel do not accept any Claim or Liability and the Client indemnifies and releases EIF and its Personnel from and against any Claim and Liability caused by or associated with:
(i) the Client’s failure to comply with, or delay in complying with, clause 3.1(a) or clause 3.1(b);
(ii) EIF’s and its Personnel’s reliance on and actions or omissions pursuant to clause 3.1(c);
(iii) the matters set out in clause 3.1(d);
(iv) the Client’s breach of any other provision of the Agreement or the Client’s delay in compliance with any other provision of the Agreement.

4.1. The Client agrees to pay EIF the fee for the Services as set out in the Purchase Order or as otherwise varied in writing in accordance with these Terms (‘Fees’).
4.2. EIF may invoice for the Fees at the completion of the Services or at different stages of performing the Services (‘Invoices’).
4.3. The Client must pay the Invoices within 30 calendar days of issue of the Invoice, otherwise by the due date as stated on the Invoice (if such date is more than 30 calendar days from the date of issue of the Invoice). The Client must pay this on demand.
4.4. If the Client does not pay the Invoices when due for payment, EIF reserves the right to charge the Client default interest at the rate of 8% per annum, incurred and calculated from the due date for payment until the actual date of payment.

5.1. Where any supply to be made by one party (‘Supplier’) to another party (‘Recipient’) under or in accordance with the Agreement is subject to GST (other than a supply the consideration for which is specifically described in the Agreement as ‘GST inclusive’):
(a) the consideration payable or to be provided for that supply but for the application of this clause 5.1 (‘GST Exclusive Consideration’) will be increased by, and the Recipient must pay to the Supplier, an amount equal to the GST payable by the Supplier in respect of that supply; and the Recipient must pay that additional amount at the same time and in the same manner as the GST Exclusive Consideration payable or to be provided for that supply.
5.2. Notwithstanding any other provision of the Agreement, the Recipient is not obligated to make any payment for a taxable supply made by the Supplier under or in accordance with the Agreement until the Supplier has given the Recipient a tax invoice in respect of that taxable supply.
5.3. A word or expression used in this clause 5 which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the same meaning in this clause 5.

6.1. If the Client is a company, the person or persons agreeing to these Terms on behalf of the Client also agree in their personal capacity and agree to personally guarantee all obligations of the Client as set out in the Agreement. In so doing, that person or persons acknowledge and agree that:
(a) They have the capacity and authority on behalf of the Company to agree to and enter into the Agreement.
(b) The guarantee pursuant to this clause 6.1 is joint and several.
(c) If the Client breaches the Agreement, EIF may choose to proceed with enforcement action against the Client or the guarantor under this clause 6.1 or if there is more than one guarantor then one or more or any of them, in EIF’s absolute discretion.
(d) They have had the opportunity to seek independent legal advice and independent financial advice and they agree to these Terms including the guarantee under this clause 6.1 of their own volition.

7.1. EIF retains all title, ownership, right, and interest in the Services and the Intellectual Property Rights in the product resulting from the Services, unless and until such time as the Client pays all amounts and complies with all obligations under the Agreement.
7.2. EIF does not provide any warranty, guarantee, or representation to the Client in respect of any materials the Client supplies in EIF’s performance of the Services.
7.3. Each party will indemnify and keep indemnified the other party from and against any and all Claim and Liability which the other party may suffer or incur or be called upon to suffer or incur caused by or associated with any breach of or default by the first mentioned party of any of its obligations in the Agreement.
7.4. If there is any rectification of Services required, this must be requested in writing by the Client and which notice must include details of the rectification sought to the Services, and any such notice must be issued as a matter of priority following the performance of the Services or the part thereof as the case may be. If EIF agrees that any rectification of Services is required, the Client’s remedies are limited to EIF deciding, in its discretion, to either reimburse the Client for the amount paid for the Services or the part thereof as the case may be or otherwise rectify the Services within a reasonable period.
7.5. EIF and its Personnel will not be liable to the Client for any Liability or Claim of any kind arising directly or indirectly in relation to any indirect or consequential loss (including any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use), or any remote, abnormal, or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.
7.6. The Client must reimburse EIF for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery, agent, and other expenses EIF incurs or is to incur on a full indemnity basis associated with any action EIF takes to enforce the Agreement.
7.7. Each party must take reasonable steps to mitigate any Liability it suffers or incurs.
7.8. Nothing in this Agreement is intended to contract out of any liabilities and obligations of a party as required by law.
7.9. In recognition of providing the Services, and to secure the punctual payment of all amounts the Client owes EIF under the Agreement, the Client grants to EIF:
(a) a purchase money security interest (as defined under the PPSA) over the Client’s present and after-acquired goods;
(b) a security interest (as defined under the PPSA) over all of the Client’s present and after-acquired property in relation to which the Client can be a grantor of a security interest under the PPSA, whether or not the Client has title to the property, including all PPSA retention of title property (as defined under section 51F of the Corporations Act 2001 (Cth)); and
(c) a fixed charge over all the Client’s present and after-acquired property in relation to which the Client cannot be a grantor of a security interest under the PPSA, including real property.
7.10. The Client agrees and acknowledges that EIF may (without limiting EIF’s other rights under the Agreement, at law, or otherwise) register EIF’s security interests, and take any other action to secure and enforce EIF’s security under these Terms.
7.11. The Client must immediately, if EIF requests, sign any documents, provide all necessary information, and do anything else EIF reasonably requires to ensure that EIF’s purchase money security interest or other security interest is a perfected security.
7.12. The Client:
(a) agrees that the Client will not disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA;
(b) agrees that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135,
138B(4), 142, and 143;
(c) agrees that, to the extent permitted under section 115(7) of the PPSA, the following provisions of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135,
136(5), and 137;
(d) acknowledges that EIF may, at EIF’s cost, register one or more financing statements in relation to any such security;
(e) waives, if permitted under the PPSA, the Client’s right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and
(f) will not, without prior written notice to EIF, change the Client’s name or initiate any change to any documentation registered under the PPSA.
7.13. Subject to clause 7.14, EIF will pay all costs of registering and of removing any and all Security.
7.14. The Client:
(a) warrants and undertakes that the Client will not take any action, whether directly or indirectly, in removing any Security registered in favour of EIF under these Terms.
(b) agrees to indemnify EIF for EIF’s legal, court, and other costs on a full indemnity basis that EIF incurs or is to incur as a result of or associated with the Client’s breach or threatened breach of clause 7.14(a).

8.1 EIF and its Personnel are not liable for any Claims and Liabilities caused by or associated with a failure to perform or delay in performing the Services or an obligation under the Agreement due to mechanical or technological breakdown, strike, delay, third-party fault or negligence, pandemic, lack of labour, lack of materials, serious safety issues, or other material third-party action or omission (‘force majeure’), unless EIF caused such force majeure or is grossly negligent.
8.2 In the event of a force majeure continuing for a period of three months or more, either party may immediately terminate this Agreement.

9.1. Either party may terminate the engagement under the Agreement for any reason with 30 calendar days’ written notice to the other party.
9.2. Either party (‘Non-Defaulting Party’) may immediately terminate, or suspend the performance of, the engagement under the Agreement if:
(a) the other party (‘Defaulting Party’) breaches a term of the Agreement, and the Defaulting Party does not remedy the breach within 14 calendar days of receiving a notice from the Non-Defaulting Party requiring them to do so;
(b) the Defaulting Party breaches a term of the Agreement which is not capable of remedy; or
(c) an Insolvency Event occurs in relation to the other party.
9.3. Upon termination of the engagement under the Agreement:
(a) each party must return all property of the other party to that other party; and
(b) EIF is entitled to receive any amount unpaid in respect of the Payment for Services performed prior to the date of termination of the engagement under the Agreement.

10.1. A party cannot commence legal proceedings, except proceeding seeking urgent interlocutory relief, in relation to any disputes concerning the Agreement, without first complying with the dispute resolution procedures in this clause 10.
10.2. This clause 10 survives termination of the engagement under the Agreement.
10.3. If a dispute arises between the parties, the parties to the dispute will, in good faith, use all reasonable endeavours to settle the dispute by negotiation.
10.4. If a dispute is not settled by the parties in accordance with clause
10.3 within 21 calendar days of written notification of the dispute by either party to the other party:
(a) the parties will endeavour to settle the dispute by mediation.
(b) the parties agree to select a mediator within 14 calendar days of the date of notice of intention to mediate.
(c) if the parties cannot agree on a particular mediator, a mediator may be appointed by the President of the Law Society of South Australia or the President’s nominee, acting on the written request of either party.
(d) the parties will share the cost of the mediator equally, but will each be responsible for their own costs of and associated with the mediation.
10.5. If the dispute cannot be resolved in accordance with clause 10.3 or 10.4, either party may serve notice referring the dispute to legal action.

11.1. The parties are all able to and have the capacity and authority to enter into the Agreement.
11.2. If the day on or by which something is required to be done or may be done is not a Business Day, that thing must be done on or by the next Business Day.
11.3. The failure or omission of a party to enforce or require strict compliance with a provision of the Agreement does not affect or impair that party’s rights subsequently to enforce or require strict compliance with that provision or to avail itself of any of the remedies it may have in respect of any breach of that provision.
11.4. A waiver of: any right arising from a breach of the Agreement; or any right, power, authority, discretion, or remedy arising from default under the Agreement, must be in writing and signed by the party granting the waiver.
11.5. A failure, or delay in exercise, or partial exercise, of: a right arising from a breach of the Agreement; or any right, power, authority, discretion, or remedy created or arising upon default under the Agreement, does not result in a waiver of that right, power, authority, discretion, or remedy.
11.6. The rights, powers, authorities, discretions, and remedies under the Agreement are cumulative and do not exclude any other right, power, authority, discretion, or remedy of and available to any party.
11.7. If any term or provision of the Agreement is decided by a court of competent jurisdiction to be invalid, void, or unenforceable, that part of the term or provision will be severed from the Agreement and of no force and effect, and all remaining parts of the Agreement will remain in full force and effect.
11.8. Any notice to be given under the Agreement:
(a) must be in writing and in English;
(b) must be from that party or that party’s authorised officer, attorney, or solicitor;
(c) must be served by either:
(i) leaving it at or posting it to that party’s postal
address, or the postal address as later advised by them in writing; or
(ii) sending it by email to the email address of that party, or the email address as later advised by them in writing; and
(d) is taken to be received:
(i) if hand delivered, on delivery;
(ii) if posted, on the third Business Day after posting;
(iii) if sent by email by 4pm on a Business Day then on that day, otherwise on the next Business Day,
and takes effect on the date it is taken to be received (unless a later date is specified in the notice).

12.1. In the Agreement, unless the context implies otherwise, the following words have the following definitions:
(a) ‘Business Day’ means a Monday to Friday inclusive, excluding a declared public holiday in South Australia.
(b) ‘Claim’ means any actual, contingent, present, or future demand, claim, action, application, cause of action, or proceeding, for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance, or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in statute, contract, tort (including negligence), equity, or otherwise.
(c) ‘Insolvency Event’ means any of the following, or any analogous, events:
(i) a party disposes of the whole or any part of its assets, operations, or business, other than in the ordinary course of business;
(ii) a party ceases, or threatens to cease, carrying on business;
(iii) a party is unable to pay its debts as the debts fall due;
(iv) any step is taken by a mortgagee to take possession or dispose of the whole or any part of a party’s assets, operations, or business;
(v) any step is taken for a party to ensure into any arrangement or compromise with, or assignment for the benefit of, its creditors or any class of its creditors; or
(vi) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator, or liquidator of the whole or any part of a party’s assets, operations, or business.
(d) ‘Intellectual Property Rights’ means any present or future rights conferred by statute, common law, or equity, in any part of the world, in relation to any confidential information, copyright, trade marks, service marks, designs, patents, circuit layouts, business names, domain names, inventions, trade secrets, or other results of intellectual activity in any industrial, commercial, scientific literary, or artistic fields.
(e) ‘Liability’ means any loss, liability, cost, payment, damages, debt, or expense (including reasonable legal
fees).
(f) ‘party’ means each of the parties to the Agreement and ‘parties’ means all of them.
(g) ‘Personnel’ means EIF’s officers, directors, shareholders, agents, employees, and contractors as the case may be.
(h) ‘PPSA’ means the Personal Property Securities Act 2009 (Cth).
(i) ‘Security’ means the security agreed to by the Client for performance of the Client’s obligations to EIF and permitted for the protection of EIF, as set out in clause 7 of these Terms.
12.2. In these Terms, unless the context otherwise necessarily requires:
(a) expressions indicating natural persons also refer to bodies corporate, trusts, and unincorporated associations, and vice versa.
(b) the singular includes the plural and vice versa.
(c) words importing one gender includes a reference to other genders.
(d) reference to a clause or part of a clause will be construed as reference to a clause or part of a clause of these Terms.
(e) the use of the word ‘includes’ or similar is not to be taken as limiting the meaning of the words preceding or following it.
(f) references to any document are to that document as it may from time to time be amended or extended pursuant to its terms.
(g) all monetary amounts are the legal currency of the Commonwealth of Australia.
(h) a reference to a statute, code, or law includes regulations, rules, and other instruments under the statute, code, or law and any consolidations, amendments, re-enactments, or replacements thereof.
(i) the headings used in the Agreement have been inserted for convenience and reference only and do not form part of the Agreement and will not affect the construction or interpretation of the Agreement.
(j) a reference to a group of persons is to all of them jointly and each of them severally.
(k) a promise, representation, or warranty in favour of two or more persons is in favour of all of them jointly and each of them severally and made by two or more persons binds all of them jointly and each of them severally.
(l) a provision of the Agreement is not to be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of a provision in the Agreement.
(m) dates and times are fixed by reference to the capital city of South Australia.

13.1. South Australian law applies to the Agreement and the parties submit to the exclusive jurisdiction of the courts of that State.