Last updated 7/08/2026

1. DEFINITIONS AND INTERPRETATION

1.1     Definitions

ACL means the Australian Consumer Law contained in schedule 2 of the Competition & Consumer Act 2010 (Cth), and relevant state legislation.

Additional Charge means:

(a)  fees or charges for additional work performed at the Customer's request or reasonably required due to the Customer's conduct, calculated in accordance with EPG's then current prices; and

(b)  expenses incurred by EPG, at the Customer's request or reasonably required due to the Customer's conduct.

Attach has the same meaning as in the PPSA.

Business Day means a day that is not a Saturday, Sunday or public holiday in Victoria, Australia within the meaning of the Public Holidays Act 1993.

Claim includes without limitation any claim, obligation, remedy, notice, demand, action, proceeding, litigation, investigation, judgment, damage, loss, cost, expense, liability, claim for compensation, requisition, refusal to complete, objection or attempt to avoid these Terms, whichever is applicable, however arising, whether present, unascertained, immediate, future or contingent, whether based in contract, tort or statute, whether at law, in agreement or in equity and whether involving a third party or a party to these Terms.

Customer means entity or person procuring the Goods and/or Services from EPG and includes the Customer's agents and permitted assigns.

Delivery means the delivery of Goods by or on behalf of EPG, or the provision of Services by EPG.

EPG means Essential Power Group Pty Ltd ACN 615 135 165 of 516 Hampton Street, Hampton VIC 3188 and the supplier of the Goods and/or Services under these Terms.

Goods means any goods supplied by EPG in accordance with these Terms, and, if applicable, a Quote, including those supplied in the course of providing Services.

GST has the same meaning as in the GST Act.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.

Jurisdiction means the State of Victoria.

IP Rights means intellectual property rights at any time protected by statute or common law, including without limitation, copyright, trademarks, patents, registered designs, trade and domain names, goodwill, rights in get-up, rights to sue for passing off, rights in designs, computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual or industrial property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection that now or in future, subsist anywhere in the world.

Loss includes, without limitation, costs (including party to party legal costs and EPG's legal costs), Claims, expenses, lost profits, award of damages, personal injury and property damage.

Order means a purchase order placed by a Customer for Goods and/or Services in the form prescribed by EPG from time to time including through text message correspondence between EPG and the Customer and confirmed by EPG.

PPS Law means the PPSA and any regulation made at any time under the PPSA (each as amended from time to time), as well as any amendment made at any time to any other legislation as a consequence of the PPSA or any regulations made under the PPSA.

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

PPSR means the Personal Properties and Securities Register, being an official government register established under the PPSA, that is a public noticeboard of security interests in personal property.

Quote means a written description of the Goods and/or Services to be provided, an estimate of EPG's charges for those Goods and/or Services and an estimate of the time frame for the provision of the Goods and/or Services.

Services means any services to be provided by EPG in accordance with these Terms and, if applicable, a Quote.

Terms means these Terms and Conditions including Schedule 1.

Works means a written description of Goods and/or Services to be provided by EPG, as set out in the Quote, if applicable.

1.2     Interpretation

In these Terms, unless the context otherwise requires:

(a)  a reference to writing includes email and other written communication;

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

(c)  a reference to a clause or paragraph is a reference to a clause or paragraph of these Terms;

(d)  a reference to a party to these Terms or any other document or arrangement includes that party's executors, successors, administrators and permitted assigns;

(e)  where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(f)   headings are for ease of reference only and do not affect the meaning or interpretation of these Terms; and

(g)  if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing must be done on the next Business Day, unless it involves a payment other than a payment which is due on demand in which case it must be done on the preceding Business Day.

2.     GENERAL

Unless otherwise expressly agreed in writing, these Terms apply to all transactions between the Customer and EPG relating to the provision of Goods and/or Services by EPG to the Customer. This includes without limitation all quotations, contracts and variations. These Terms take precedence over any terms of trade contained in any Customer document or elsewhere.

3.     QUOTES

(a)  EPG may provide the Customer with a Quote. Unless stated otherwise on the Quote, Quotes are valid for 30 days from the date of issue.

(b)  Quotes assume the timely supply by the Customer to EPG of any necessary material, instructions and/or information.

(c)  To accept a Quote, the Customer must sign and date the Quote in writing and return it to EPG. For the avoidance of doubt, a request in writing by the Customer to commence the Works in line with the Quote constitutes acceptance of the Quote in full and on these Terms, notwithstanding that the Customer does not sign and/or date the Quote and/or return a signed copy to EPG.

(d)  EPG reserves the right to amend any Quote before the corresponding Order has been completed to take into account any rise or fall in the cost of completing the Order. EPG will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will apply.

(e)  An indication in a Quote of a time frame for the Delivery of the Goods and/or Services is an estimate only. Subject to any obligations regarding consumer guarantees under the ACL, the estimate is not binding upon EPG.

4.   ORDERS AND DELIVERY

(a)  Unless otherwise agreed in writing, Orders for Goods or Services must be submitted in writing on EPG's standard Order form.

(b)  An Order will only be deemed to be placed by the Customer if it clearly identifies the Goods and/or Services ordered and (if applicable) EPG's Quote. Any costs incurred by EPG in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.

(c)  Orders must be signed by an authorised representative of the Customer.

(d)  Placement of an Order by the Customer evidences the Customer's acceptance of these Terms and (if applicable) the most recent Quote relating to that Order.

(e)  At the time of placing an Order, the Customer must notify EPG in writing of any facts that might reasonably be expected to affect Supplier's decision to accept the Order including, without limitation, overdue amounts owing to EPG by a related party of the Customer. The Customer acknowledges and agrees that failure to provide such facts constitutes unconscionable conduct and is misleading and deceptive.

(f)   EPG may, in its absolute discretion, and without incurring any liability, refuse to provide Goods and/or Services requested in an Order (or otherwise) where:

(i)   Goods (or any part thereof) are unavailable for any reason whatsoever; or

(ii)  payment for Goods and/or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of EPG, associated with the Customer under the same or another supply contract, has not been received by EPG.

(g)  Once an Order is accepted by EPG, EPG shall use its reasonable endeavours to ensure the Goods ordered are available and that the Services ordered are provided within a reasonable period of time, and if reasonably practicable, by the Delivery date. The Customer acknowledges and agrees that:

(i)   EPG shall not be liable for any Claim or Loss; and

(ii)  the Customer is not entitled to reject Goods and/or services,as a result of any delay in Delivery.

(a)  Once an Order or part thereof, is ready for Delivery, EPG will notify the Customer in writing. The Customer must accept Delivery of the Goods within 48 hours of receipt of such notification, failing which EPG may charge Additional Charges in respect of the storage, holding and/or handing fees for the period after the abovementioned 48 hours, until the Goods have been delivered.

2.   VARIATIONS

(a)  The Customer may request that its Order be varied by providing a request in writing to EPG. A request for a variation must be agreed to in writing by EPG in order to have effect. For the avoidance of doubt, EPG has the absolute discretion to accept or reject a variation request.

(b)  If the Customer wishes to vary its requirements after a Quote has been prepared by EPG or after the acceptance of an Order, EPG may vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by EPG in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods and/or Services.

(c)  EPG is entitled to an automatic extension of time for the provision of the Goods and/or Services equal to the delay caused by the variation.

3.   CANCELLATION AND RETURNS

(a)  An Order cannot be cancelled without the prior written consent of EPG. The Customer indemnifies EPG and must keep EPG indemnified against any Losses incurred by EPG as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order that is subsequently cancelled.

(b)  Subject to any Customer rights under the ACL and these Terms, in respect of the return of Goods, the Customer acknowledges and agrees that:

(i)   EPG has the absolute discretion to accept or reject a request for the return of Goods;

(ii)  Goods cannot be returned due to a 'change of mind' without the written consent of EPG;

(iii) custom made, custom processed or custom acquired Goods cannot be returned, unless otherwise agreed;

(iv) if EPG accepts any return request:

(A) the Customer must arrange for the return of the applicable Goods at their own expense, and the risk associated with those Goods remains with the Customer until they reach EPG's place of business and are accepted by EPG, which acceptance will not be unreasonably withheld if the said Goods are in the same condition they were in when originally sold to the Customer;

(B) EPG may elect, at its discretion, to provide a refund or credit in respect of returned Goods, less a restocking fee up to 50% of the price of the Goods.

4.   INVOICING AND PAYMENT

(a)  EPG may, in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:

(i)   prior to commencing the provision of the Goods or Services, for an amount equal to the Quote or confirmed Order and Additional Charges; or

(ii)  on Delivery of Goods and/or Services, regardless of whether the Order pursuant to which the said Goods and/or Services delivered has been completed in full.

(b)  The amount payable by the Customer will be the amount set out in the invoice, calculated as:

(i)   the amount for the Goods and/or Services as set out in the Quote or Order, and any Additional Charges; or

(ii)  where no Quote has been provided by EPG, EPG’s usual charges as at the date of Delivery for the Goods and/or Services as described in the Order.

(c)  Unless otherwise agreed in writing Invoices are payable within 7 days after Delivery of the Goods and/or Services, and payment must be made without deduction or set-off (legal or equitable), withholding or counterclaim whatsoever.

(d)  Time is of the essence in relation to payment of an invoice. If any invoice is due but unpaid:

(i)   EPG may suspend the provision of Goods and/or Services until all overdue amounts are paid in full;

(ii)  whether or not demand has been made, the Customer must pay EPG interest on all overdue amounts at the rate of 4% above the annual rate set under the Penalty Interest Rates Act 1983 (Vic) from time to time, calculated daily from the due date of the invoice until the date that payment is made;

(iii) the Customer must pay EPG on demand all costs and expenses associated with collecting overdue amounts, including without limitation legal fees and internal costs and expenses of EPG.

(e)  EPG may in its absolute discretion apply any payment received from the Customer to any amount owing by the Customer to EPG.

(f)   The Customer is not entitled to retain any money owing to EPG regardless of any default or alleged default by EPG of these Terms, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer's rights for any alleged failure of a consumer guarantee under the ACL.

5.   PRICES / CHARGES AND GST

(a)  Unless expressly specified otherwise by EPG, Supplier prices and charges for Goods and Services exclude statutory taxes, duty or imposts levied in respect of the Goods and/or Services.

(b)  The Customer and Supplier agree to comply with their obligations in relation to GST under the GST Act.

(c)  The Customer must pay GST on any taxable supply made by EPG to the Customer, whenever and howsoever, subject only to EPG first providing a valid tax invoice to the Customer. The payment of GST is in addition to any other consideration payable by the Customer for any taxable supply made by EPG.

(d)  If as a result of:

(i)   any legislation becoming applicable to the subject matter of these Terms; or

(ii) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration,

EPG becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Customer or otherwise in respect of any supplies made by EPG to the Customer, then the Customer must pay EPG these additional amounts, on demand.

6.   ADDITIONAL CHARGES

(a)  EPG may require the Customer to pay Additional Charges incurred by EPG as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by EPG in order for it to provide the Goods and/or Services within the desired time frame (if any).

(b)  The imposition of Additional Charges may also occur due to:

(i)   cancellation by the Customer of an Order where cancellation results in Loss to EPG;

(ii)  storage costs for Goods not accepted for delivery, 2 days from the date on which the Customer was notified that the Goods were ready for Delivery;

(iii) photocopying, courier, packing or handling charges not included in the Quote;

(iv) Government or council taxes or charges not included in the Quote; or

(v)  additional work required by the Customer; or

(vi) any other occurrence which causes EPG to incur costs in respect of the Customer's Order additional to the Quoted cost (if applicable).

3.   WARRANTY CLAIMS / ACCEPTANCE OF GOODS

(a)  The Customer has 3 days from the date of Delivery of Goods to notify EPG in writing of any shortfall, fault or defect in Goods or failure of Goods to accord with the Customer's Order, or to make a warranty claim in respect of any of the Goods.

(b)  If the Customer fails to advise EPG in writing of any shortfall, fault or defect in Goods or failure of Goods to accord with the Customer's Order within 3 days of Delivery, the Customer is deemed to have accepted the Goods, including that the correct number of Goods has been supplied, the Goods are not faulty or defective and they accord with the Customer's Order. Nothing in this paragraph affects the Customer's rights for any alleged failure of a consumer guarantee under the ACL.

4.   TITLE AND RISK

(a)  Risk in the Goods passes to the Customer immediately upon Delivery of the Goods by or on behalf of EPG in accordance with these Terms.

(c)   Property and title in Goods do not pass to the Customer until all money (including money owing in respect of other transactions between EPG and the Customer) due and payable to EPG by the Customer have been fully paid.

(b)  Until property and title in Goods supplied to the Customer under these Terms pass to the Customer, the Customer:

(i)   is fiduciary bailee of the Goods;

(ii)  must store the Goods in such a manner that can be identified as the property of EPG cross-referenced to the corresponding Supplier invoices, and shall not mix the Goods with other or similar goods;

(iii) must not allow any person to have or acquire any security interest in the Goods, or other interest in the Goods that is adverse to EPG's interest;

(iv) agrees EPG may repossess the Goods if payment is not made within 30 days (or such longer time as EPG may, in its complete discretion, approve in writing) of the supply of the Goods;

(v)  grants an irrevocable licence to EPG or its agent to, with or without notice to the Customer, enter the Customer's premises to recover possession of Goods pursuant to this paragraph. The Customer acknowledges and accepts that such entry will not give rise to any action of trespass or similar action on the part of the Customer against EPG, its employees, servants or agents. The Customer indemnifies and must keep EPG indemnified from any Loss or Claim (including any damage to property or personal injury) which occurs as a result of EPG or its agents entering the Customer's premises; and

(vi) irrevocably appoints EPG to be its attorney to do all acts and things necessary to ensure the retention of title to Goods including registration of any security interest in favour of EPG with respect to the Goods under applicable law.

(d)   Where Goods are supplied by EPG to the Customer without payment in full of all moneys payable in respect of the Goods and/or Services provided by EPG in respect of those Goods, and:

(i)   the Customer makes a new object from the Goods, whether finished or not;

(ii)  the Customer mixes the Goods with other goods; or

(iii) the Goods become part of other goods (New Goods),

the Customer agrees that ownership of the New Goods immediately passes to EPG at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods. The Customer will hold the New Goods on trust for EPG until payment of all sums owing to EPG whether under these Terms or any other contract have been made. EPG may require the Customer to store the New Goods in a manner that clearly shows the ownership of EPG.

(e)   Despite paragraph 11(c) and 11(d), the Customer may transfer, sell or dispose of Goods (including New Goods) to a third party in the ordinary course of business, provided that:

(i)   where the Customer is paid by a third party in respect of Goods (including New Goods) the Customer holds the whole of the proceeds of sale, less any GST, on trust for EPG absolutely in a separate account, until all amounts owned by the Customer to EPG have been paid; or

(ii)  where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to EPG upon EPG giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints EPG as its attorney.

(f)    The Customer agrees that where Goods (including New Goods) have been repossessed by EPG, EPG has the absolute right to sell or deal with those Goods or New Goods, and if necessary, sell them with the Customer's trademark or name on them, and the Customer grants an irrevocable licence to EPG to do all things necessary to effect the sale of the said Goods or New Goods, including without limitation, those bearing the name, brand or trademark of the Customer.

(g)   The Customer acknowledges that a certificate signed by a representative of EPG identifying Goods and/or Services as unpaid shall, in the absence of manifest error, be conclusive evidence that the said Goods and/or Services have not been paid for.

(h)   Where Goods and/or Services are supplied by EPG to the Customer without payment in full the Customer acknowledges that EPG may register and perfect a personal property security interest under the PPS Law.

(i)     The Customer acknowledges that EPG's security interest in the Goods (including New Goods), and any proceeds of sale, Attaches when the Customer attains possession of the Goods and/or to the proceeds of sale of the Goods (or New Goods).

(j)     For the avoidance of doubt, EPG’s interest under this clause constitutes a ‘purchase money security interest’ pursuant to and for the purposes PPS Law.

5.   SECURITY / CHARGES

(a)  EPG and the Customer agree that these Terms constitute a security agreement for the purposes of the PPS Law and establish a security interest in the charged property for the purposes of the PPS Law, which will be registrable on the PPSR.

(b)  As further security for the payment of all moneys owed to by the Customer to EPG, the Customer charges in favour of EPG:

(i)   all of its estate and interest in any real property; and

(ii)  all of its estate and interest in any personal property,

whether at present or in the future and with the amount of all of its indebtedness to EPG, whether pursuant to these Terms or otherwise, on any account whatsoever, and from time to time and until repaid fully and finally to EPG.

(k)   The Customer consents to EPG registering its security interest on the PPSR and agrees to do all things and provide all information and assistance reasonably required by Supplier to facilitate registration and perfect its security interest under the PPS Law.

(l)     To the extent that EPG's security interest relates to after acquired personal property, it Attaches on the date the Customer has the power to transfer rights in the said personal property to EPG.

(m) EPG's security interest is a continuing security interest and remains in force until EPG gives to the Customer a final release, and, where required under the PPS Law, a financing change statement (as defined in the PPS Law). EPG is not required to give a final release until it is satisfied that:

(i)   all moneys owed to by the Customer to EPG have been paid in full;

(ii)  there is no other money which EPG expects will become owing to it by the Customer; and

(iii) any payment received by EPG from the Customer is not repayable, void or voidable under any law.

(n)   To the extent permitted by the PPSA the Customer:

(i)   contracts out of the provisions of the PPSA which, under section 115(1) and section 157 of the PPSA, it is permitted to contract out of;

(ii)  waives its right to receive form EPG each notice or document, which it is permitted to waive under section 144 of the PPSA; and

(iii) waives its right to receive anything from EPG under section 175 of the PPSA and agrees not to make any request under that section;

(o)   However, nothing in this clause affects the right of EPG to receive a notice, documents or amount which it is entitled to receive under another provision of these Terms or any other agreement to which it is a party.

(p)   The Customer is responsible for and shall indemnify and keep EPG indemnified from and against all of EPG’s Losses incurred in exercising or purporting to exercise its rights under paragraphs 11 and 12.

6.   INTELLECTUAL PROPERTY RIGHTS

(c)  The Customer warrants that it owns all IP Rights pertaining to its Order for Goods or Services or has a licence to authorise EPG to reproduce or use all copyright works or other materials the subject of IP Rights supplied by the Customer to EPG for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified EPG against all Losses incurred by EPG in relation to or in any way directly or indirectly connected with allegation of breach of any third parties' IP Rights in relation to any material supplied by the Customer or use by EPG permitted by the Customer or these Terms.

(d)  Unless specifically agreed in writing between EPG and the Customer, all IP Rights in any works created by EPG on behalf of the Customer vest in and remain the property of EPG.

(e)  Subject to payment of all invoices due in respect of the Goods or Services, EPG grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by EPG in connection with the provision of Goods or Services under these Terms for the purposes contemplated by the Order.

7.   AGENCY AND ASSIGNMENT

(a)  The Customer agrees that EPG may at any time appoint or engage an agent to perform an obligation of EPG arising out of or pursuant to these Terms.

(b)  EPG may assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms provided that the assignee agrees to assume any duties and obligations of EPG owed to the Customer under these Terms.

(c)  The Customer is not permitted to assign, or purport to assign, any of its obligations or rights under these Terms without the prior written consent of EPG, which EPG may grant or decline in its absolute discretion.

8.   DEFAULT BY CUSTOMER

(a)  The following events each constitute an event of default:

(i)   the Customer breaches or is alleged to have breached these Terms for any reason (including without limitation, defaulting on any payment due under these Terms) and fails to remedy that breach within 14 days of being given notice by EPG to do so;

(ii)  the Customer becomes unable to pay its debts as and when they fall due;

(iii) the Customer, being a natural person, commits an act of bankruptcy;

(iv) the Customer, being a corporation, is subject to:

(A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;

(B) liquidation, or the appointment of a liquidator or provisional liquidator;

(C) a receiver, receiver and manager, or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer's property and undertaking;

(D) the entering of a scheme of arrangement (other than for the purpose of restructuring); and

(E) any assignment for the benefit of creditors; or

(F)  being subject to any application or process giving rise to the above;

(v)  the Customer commits an act involving serious or wilful misconduct, fraud, deceit or dishonesty;

(vi) the Customer purports to assign its rights under these Terms without EPG's prior written consent;

(vii)   the Customer ceases or threatens to cease conduct of its business in the normal manner; or

(viii)  the Customer dies or becomes mentally or physically incapable of managing his, her or its affairs.

(b)  Where an event of default occurs, except where payment in full has been received by EPG, EPG may:

(i)   terminate these Terms;

(ii)  terminate any or all Orders and credit arrangements (if any) with the Customer;

(iii) refuse to deliver Goods or provide further Services;

(i)   pursuant to paragraph 1.1(b), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or

(ii)  retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.

(c)  In addition to any action EPG may take under paragraph 15(b), on the occurrence of an event of default all invoices will become immediately due and payable.

(d)  The Customer acknowledges that on termination of these Terms for any reason, EPG is under no obligation to continue providing any of the Goods or Services. EPG will not be liable for any Claims arising as a result of EPG immediately ceasing the Goods or Services on and from termination.

(e)  Termination of expiry of these Terms will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.

9.   EXCLUSIONS AND LIMITATION OF LIABILITY

(a)  The Goods and Services come with guarantees that cannot be excluded, restricted, limited or varied under the ACL. However, save for any terms, conditions, guarantees, warranties, indemnities or other rights the Customer may have under the ACL or other legislation and which cannot be excluded, all warranties, whether express or implied including warranties as to fitness for any purpose and merchantability are expressly excluded.

(b)  Without limiting paragraphs 16(a), subject to any Customer rights under the ACL or any other applicable law, and to the maximum extent permitted by law:

(i)   the Customer expressly agrees that:

(A) use of the Goods and/or Services is at their own risk;

(B) Goods are subject to manufacturer trading terms and conditions and warranties (if any);

(C) EPG gives no warranties in relation to the Services provided or supplied;

(ii)  all information, specifications and samples provided by EPG in relation to Goods and/or Services are approximations only, and small deviations or slight variations which do not substantially affect the Customer's use of the Goods and/or Services do not entitle the Customer to reject the Goods and/or Services or to make any Claim in respect of them;

(iii) any advice, recommendation, information, assistance or service given by or on behalf of EPG in relation to Goods and/or Services, is given in good faith, is believed to be accurate, appropriate and reliable at the time it is given, and is provided without any warranties as to accuracy, reliability or appropriateness. The Customer relies on its own knowledge and expertise in deciding to purchase Goods and/or Services, and is responsible for making its own enquiries to satisfy itself in respect of any recommendation advice, information, assistance or service given by or on behalf of EPG.

(c)  Other than as provided in these Terms, and subject to any Customer rights under the ACL or any other applicable law, to the maximum extent permitted by law, EPG (and its suppliers) and its employees, contractors or agents, are not liable or responsible to the Customer in any way for:

(i)   any Loss, damages (including direct, indirect, punitive, incidental, contingent, consequential, special damages or any damages whatsoever), costs, expenses or other Claims arising from or in any way connected with, directly or indirectly:

(ii)  use of, or defect, deficiency or discrepancy in the Goods and/or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, malfunction, breakdown or deterioration, including, without limitation, for and in relation to any Goods and/or Services supplied to the Customer and any delay or failure to supply any Goods and/or Services;

(iii) the provision of or failure to provide Goods and/or Services, or otherwise arising out of the provision of Goods and/or Services, whether based on terms of trade, negligence, strict liability or otherwise, even if EPG was advised of the possibility of damages;

(iv) any information, specifications and samples provided by or on behalf of EPG as described in paragraph 16(b)(ii);

(v)  any advice, recommendation, information, assistance or service given by or on behalf of EPG as described in paragraph 16(b)(iii);

(vi) any other act, omission or statement by EPG or its employees, contractors or agents, whether due to negligence or otherwise.

(d)  To the maximum extent permitted by law, any liability EPG may have to the Customer in respect of Goods that cannot be excluded will be limited to, at EPG's discretion:

(i)   replacing the Goods or supplying similar goods;

(ii)  repairing the Goods;

(iii) providing the cost for replacing the Goods or for acquiring equivalent goods; and

(iv) providing the cost for having the Goods repaired.

(e)  To the maximum extent permitted by law, any liability EPG may have to the Customer in respect of the Services that cannot be excluded will be limited to, at EPG's discretion:

(i)   supplying the Service again; or

(ii)  providing for the cost of having the Services supplied again.

10. INDEMNITY

(a)  The Customer indemnifies and keeps indemnified EPG, its servants and agents:

(i)   in respect of any Claim by any person (including, without limitation, the Customer) against EPG or, for which EPG is liable, in connection with any Loss arising from or incidental to the provision of Goods and/or Services, any Order or the subject matter of these Terms; and

(ii)  in respect of any Loss suffered or incurred by EPG due to breach by the Customer of these Terms or any other agreement between EPG and Customer.

(b)  The indemnities described in paragraph 17(a) includes, without limitation, any legal costs incurred by EPG in relation to meeting any Claim or demand, any legal costs for which EPG is liable in connection with any Claim or demand, or legal costs incurred in enforcing EPG's rights under these terms, on a full indemnity basis.

(c)  This provision remains in force after the termination of these Terms.

11. FORCE MAJEURE

(a)  If circumstances beyond EPG's reasonable control prevent or hinder its provision of the Goods and/or Services, EPG is not obliged to provide the Goods and/or Services while those circumstances continue, and shall not be, or be deemed to be, in default of these Terms, or liable for any Loss suffered by the Customer for any delay or failure to supply Goods and/or Services, as a result of the effects of force majeure. EPG may elect to terminate these Terms or keep the Terms on foot until such circumstances have ceased.

(b)  Circumstances beyond EPG's control include, without limitation, unavailability of materials or components, fire, failure or shortage of power supplies, flood, lightning, storm, explosion, earthquake, subsidence, structural damage, epidemic or other natural physical disaster, riot, disease, civil commotion, insurrection, political instability, armed conflict, war, terrorist action, strike or other labour difficulty or shortage, unavailability of transport providers, failure or inability to obtain any licence or the threat of any of the foregoing, transport difficulties, failures or malfunctions of computers or other information technology systems.

12. DISPUTE RESOLUTION

(a)  If a dispute arises between the Customer and EPG, except where urgent interlocutory relief is sought, neither party may commence legal proceedings unless they first follow the following procedure:

(i)   The party claiming a dispute gives written notice of the dispute to the other;

(ii)  Once the dispute is notified, it is immediately referred to the parties' respective senior management. Those representatives must endeavour, in good faith, to resolve the dispute as soon as possible and in any event within 10 Business Days (or such other period as agreed);

(iii) If the dispute remains unresolved within the timeframe specified in paragraph 19(a)(ii), the parties shall refer the dispute to mediation administered by the Australian Commercial Disputes Centre (ACDC). The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these Terms. This paragraph survives termination of these Terms.

(b)  If the dispute is not resolved via mediation, either party may seek recourse via arbitration or litigation.

(c)  The Customer and EPG agree, that despite the existence of a dispute (including referral of the dispute to mediation), each party must continue to perform its obligations under these Terms.

(d)  A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.

(e)  The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

13. TRUSTEE CAPACITY

(a)  If the Customer is the trustee of any trust (whether disclosed to EPG or not), the Customer warrants that:

(i)   the Customer enters these Terms in both its capacity as trustee of all and any trusts and in its personal capacity;

(ii)  the Customer has the right to be indemnified out of all trust assets;

(iii) the Customer has the power under the relevant trust deed to enter into and undertake all of its obligations under these Terms; and

(iv) the Customer will not retire as trustee of the trust or appoint any new or additional trustee without the prior written consent of EPG.

(b)  The Customer must give EPG a copy of the trust deed upon request.

14. PRIVACY

The Customer acknowledges that EPG collects, holds, uses and discloses personal information about the Customer and its representatives in connection with the provision of Goods and/or Services. EPG handles all personal information in accordance with its Privacy Policy and the Privacy Act 1988 (Cth). The Customer consents, and warrants it has obtained the consent of its representatives, to EPG handling their personal information in accordance with EPG's Privacy Policy, a copy of which is available at on request. The Customer must ensure that any personal information it provides to EPG has been collected lawfully and that the relevant individuals have been informed of its disclosure to EPG

15. MISCELLANEOUS

(a)  These Terms are governed by the laws of the Jurisdiction, and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that Jurisdiction.

(b)  These Terms and any Quotes and written variations agreed to in writing by EPG represent the whole agreement between the parties relating to the subject matter of these Terms, and they supersede all oral and written negotiations and communications by and on behalf of either of the parties.

(c)  The variation or waiver of a provision of these Terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.

(d)  In entering into these Terms, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by EPG or any of its employees or agents relating to or in connection with the subject matter of these Terms.

(e)  If any provision of these Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.

(f)   A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.

(g)  A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on the Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the Quote, or sent by email to the email address of the addressee specified in the Quote. A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the third Business Day after posting; or if sent by email before 5pm at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt. A party may only change its postal or email address for service by giving notice of that change in writing to the other party.