Terms and Conditions

Definitions
1. “H2Ography” means H2Ography Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of H2Ography Pty Ltd, including any competent and qualified director, representative, associate, officer, employee, agent or subcontractor.
2. “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
3. “Goods” means all Goods or Services supplied by H2Ography to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
4. “Price” means the Price payable for the Goods as agreed between H2Ography and the Client in accordance with clause 5 below.
5. “Site” means the address nominated by the Client at which the Goods are to be delivered and/or installed by H2Ography.
Acceptance
1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for Goods, or accepts Delivery.
2. These terms and conditions may only be amended with H2Ography’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and H2Ography.
3. Where the Client is a tenant (and therefore not the owner of the Site) then the Client warrants that the Client has obtained the full consent of the owner for H2Ography to install the Goods on the Site. The Client acknowledges and agrees that they shall be personally liable for full payment of the Price for all Goods supplied under this agreement, and to indemnify H2Ography against any claim made by the owner of the Site (howsoever arising) in relation to the installation of the Goods and the provision of any related Services by H2Ography, except where such claim has arisen because of the negligenceof H2Ography when installing the Goods.
4. The Client agrees that they shall upon request from H2Ography provide evidence that:
  1. they are the owner of the Site; or
  2. where they are a tenant, that they have the consent of the owner for the Goods to be installed on the Site.
Change in Control
1. The Client shall give H2Ography not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by H2Ography as a result of the Client’s failure to comply with this clause.
Specifications
1. The Client acknowledges that:
  1. all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in H2Ography’s fact sheets, price lists or advertising material, are approximate only and are given by way of identification only. The Client shall not be entitled to rely on such information, and any use of such does not constitute a sale by description, and does not form part of the contract, unless expressly stated as such in writing by H2Ography;
  2. the energy savings may be less than estimated due to factors out of H2Ography’s control (including, but not limited to, weather conditions, user behaviour, air tightness of the building, the location (geographical or otherwise), and the location of surrounding structures etc).
2. The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use, as Goods are made to order and H2Ography offers no refund, either partial or fully for ecoGlaze or custom colours orders, in the event of any cancellation by the Client.
3. At H2Ographys sole discretion all other Services will be subject to a refund less twenty-five percent (25%) administration fee of the total invoice including GST.
4. The Client acknowledges and accepts that the supply of Goods for accepted orders may be subject to availability and if, for any reason, Goods are not or cease to be available, H2Ography reserves the right to substitute comparable Goods (or components of the Goods) and vary the Price as per clause 5.2. In all such cases H2Ography will notify the Client in advance of any such substitution, and also reserves the right to place the Client’s order on hold until such time as H2Ography and the Client agree to such changes.
Price and Payment
1. At H2Ography’s sole discretion the Price shall be either:
  1. as indicated on any invoice provided by H2Ography to the Client; or
  2. as at the date of Delivery according to H2Ography’s current price list; or
  3. H2Ography’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
2. H2Ography reserves the right to change the Price:
  1. if a variation to the Goods scheduled (including any applicable plans or specifications) which are to be supplied is requested; or
  2. in the event of increases to H2Ography in the cost of labour or materials, including additional transportation, packing, freight, storage, handling, insurance, or government, statutory or regulatory charges that relate to the supply of the Goods (if any), or fluctuations in currency exchange rates, which are beyond H2Ography’s control;
  3. where engineering or technical assistance forms a part of the supply of Goods:
    1. all travel time and stand-by or waiting time will be charged at the labour rate specified in H2Ography’s quotation, and if no rate is specified, at H2Ography’s standard rate at the date of Delivery; and
    2. parts and other miscellaneous materials purchased by H2Ography will be charged at cost plus fifteen percent (15%).
3. At H2Ography’s sole discretion, a non-refundable deposit of fifty percent (50%) shall be due upon acceptance of the quotation to secure the date for installation and the balance shall be due prior to collection and/or day of installation.
4. Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by H2Ography, which may be:
  1. on the day of installation;
  2. before the day of installation;
  3. by way of instalments/progress payments in accordance with H2Ography’s paymentschedule;
  4. the date specified on any invoice or other form as being the date for payment; or
  5. failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by H2Ography.
5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price, PayPal, or by any other method as agreed to between the Client and H2Ography.
6. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Rebates and Incentives
1. The Client authorizes H2Ography to apply for any grant, rebate or other benefit from the Commonwealth or State Government or any local government council in connection with the installation of the Goods (“Rebate”) in the Client’s name, and to receive payment of that Rebate on the Client’sbehalf.
2. The Client agrees to sign relevant documents provide necessary information and take necessary action that H2Ography may require, to enable H2Ography to receive payment of aRebate.
3. If H2Ography receives payment of a Rebate, it will apply that payment in, or towards satisfaction of, the Price, and pay any excess to the Client.
4. H2Ography is not responsible for any failure to obtain a Rebate, and the Client remains liable for the Price (and any other amounts due to H2Ography) which are not paid infull.
5. The Client acknowledges that, in certain circumstances, the commonwealth Government, State Government or local government council (as applicable) may require repayment of the Rebate from the Client, and in such circumstances, H2Ography will have no responsibility to the Client.
6. If, within sixty (60) days of Delivery, H2Ography does not receive payment of the anticipated Rebate in full for any reason whatsoever, the Client must pay an amount equal to the Rebate (or the balance of the Rebate which remains outstanding) to H2Ography within seven (7) days of receiving a notice from H2Ography requiring them to do so.
Delivery
1. Delivery of the Goods (“Delivery”) is taken to occur at the time that:
  1. the Client, or the Client’s nominated carrier, takes possession of the Goods at H2Ography’s premises; or
  2. H2Ography, or H2Ography’s nominated carrier or the Client’s nominated carrier, delivers the Goods to the Site, even if the Client is not present; or
  3. delivery of the Goods shall be to a nominated site as agreed by both parties, for collection by the Client.
2. At H2Ography’s sole discretion, the cost of Delivery is in addition to the Price.
3. H2Ography may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms andconditions.
4. Any time specified by H2Ography for Delivery is an estimate only and H2Ography will not be liable for any loss or damage incurred by the Client as a result of any delay. However both parties agree that they shall make every endeavour to enable the Goods to be supplied at the time and place as was arranged between both parties. In the event that H2Ography is unable to supply the Goods as agreed solely due to any action or inaction of the Client (including, but not limited to, where Delivery is delayed at the request of the Client, by reason of a delay in the supply of materials to be provided to H2Ography, or pre-requisite work to be completed prior to Delivery, by the Client or a third party, any act or omission of the Client or any third party or for any other reason beyond H2Ography’s reasonable control) then H2Ography shall be entitled to charge a reasonable fee for storage (and the Goods will be stored at the Client’s risk and expense) and/or re-supplying the Goods at a later time and date, and any payment due upon Delivery must be made at the time in which they would have been made had there been no such delays.
5. The Client grants to H2Ography a license to enter the Site for the purpose of:
  1. installing the Goods;
  2. inspecting the Goods;
  3. conducting repairs of, or maintenance to, the Goods;
  4. removing the Goods, or any equipment to facilitate the removal of the Goods, upon termination of this agreement.
6. The Client will provide H2Ography with access to water, electricity, toilet and washing facilities.
7. The Client will ensure that all other third party consents necessary for H2Ography to access the Site are obtained prior to Delivery.
Risk
1. Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
2. If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Client, H2Ography is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by H2Ography is sufficient evidence of H2Ography’s rights to receive the insurance proceeds without the need for any person dealing with H2Ography to make further enquiries.
3. If the Client requests H2Ography to leave Goods outside H2Ography’s premises for collection, or to deliver the Goods to an unattended Site, then such Goods shall be left at the Client’s sole risk.
Client’s Warranties
1. The Client:
  1. warrants that they have read and understood these terms and conditions and have had the opportunity to obtain independent legal advice about their terms andeffect;
  2. warrants that all information supplied to H2Ography in connection with the supply of Goods is true and accurate, and acknowledges that H2Ography has relied on that information in supplying the Goods;
  3. acknowledges that while H2Ography may have provided information to them about the performance of the Goods generally (including as per clause 4.1), it has not made any representation or warranty concerning the performance of the Goods or the suitability of the Goods for theSite;
  4. warrants that notwithstanding sub-clause (c), they have not relied upon any representation or warranty convening the performance of the Goods or the suitability of the Site;
  5. warrants that all electrical and plumbing infrastructure and installations at the Site (“System”) complies with all laws, Acts, rules, regulations and codes and the requirements and directions of any relevant commonwealth, State and Local Government departments and other bodies (“Laws”);
  6. warrants that the structure of the premises in or upon which these Goods are to be installed or erected is sound and will sustain the installation and work incidental thereto and H2Ography shall not be liable for any claims, demands, losses, damages, costs and expenses howsoever caused or arising should the premises or equipment be unable to accommodate the installation (including but not limited to insufficient or defective walls, ceiling, joists or other structures not erected by H2Ography);
  7. warrants that the building has been inspected for termites (within the last two (2) years) and all structural timbers are sound and load bearing;
  8. accepts that in the event asbestos or any other toxic substances are discovered at the worksite that it is their responsibility to ensure the safe removal of the same. The Client further agrees to indemnify H2Ography against any costs incurred by H2Ography as a consequence of such discovery. Under no circumstances will H2Ography handle removal of asbestos product. H2Ography may choose to cancel the installation work and the Client will compensate H2Ography for loss of income:.
Title
1. H2Ography and the Client agree that ownership of the Goods shall not pass until:
  1. the Client has paid H2Ography all amounts owing to H2Ography; and
  2. the Client has met all of its other obligations to H2Ography.
2. Receipt by H2Ography of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised, and until then H2Ography’s ownership and rights in relation to the Goods, and this agreement, shall continue.
3. It is further agreed that:
  1. until ownership of the Goods passes to the Client in accordance with clause 10.1 that the Client is only a bailee of the Goods and must return the Goods to H2Ography on request.
  2. the Client holds the benefit of the Client’s insurance of the Goods on trust for H2Ography and must pay to H2Ography the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
  3. the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for H2Ography and must pay or deliver the proceeds to H2Ography on demand.
  4. the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of H2Ography and must sell, dispose of or return the resulting product to H2Ography as it so directs.
  5. the Client irrevocably authorises H2Ography to enter any premises where H2Ography believes the Goods are kept and recover possession of the Goods.
  6. H2Ography may recover possession of any Goods in transit whether or not delivery has occurred.
  7. the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of H2Ography.
  8. H2Ography may commence proceedings to recover the Price notwithstanding that ownership of the Goods has not passed to the Client.
Personal Property Securities Act 2009 (“PPSA”)
1. In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
2. Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms andconditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by H2Ography to the Client.
3. The Client undertakes to:
  1. promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which H2Ography may reasonably require to;
    1. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    2. register any other document required to be registered by the PPSA; or
    3. correct a defect in a statement referred to in clause 11.3(a)or11.3(a)(ii);
  2. indemnify, and upon demand reimburse, H2Ography for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
  3. not register a financing change statement in respect of a security interest without the prior written consent of H2Ography;
  4. not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of H2Ography;
  5. immediately advise H2Ography of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
4. H2Ography and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
5. The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)and 132(4) of the PPSA.
6. The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7. Unless otherwise agreed to in writing by H2Ography, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
8. The Client must unconditionally ratify any actions taken by H2Ography under clauses 11.3 to 11.5.
9. Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
1. In consideration of H2Ography agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
2. The Client indemnifies H2Ography from and against all H2Ography’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising H2Ography’s rights under this clause.
3. The Client irrevocably appoints H2Ography and each director of H2Ography as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 12 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
1. The Client must inspect the Goods on Delivery and must within five (5) business days of such time notify H2Ography in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow H2Ography to inspect the Goods.
2. Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-ExcludedGuarantees).
3. H2Ography acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
4. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, H2Ography makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. H2Ography’s liability in respect of these warranties is limited to the fullest extent permitted by law.
5. If the Client is a consumer within the meaning of the CCA, H2Ography’s liability is limited to the extent permitted by section 64A of Schedule 2.
6. If H2Ography is required to replace the Goods under this clause or the CCA, but is unable to do so, H2Ography may refund any money the Client has paid for the Goods.
7. If the Client is not a consumer within the meaning of the CCA, H2Ography’s liability for any defect or damage in the Goods is:
  1. limited to the value of any express warranty or warranty card provided to the Client by H2Ography at H2Ography’s sole discretion;
  2. limited to any warranty to which H2Ography is entitled, if H2Ography did not manufacture the Goods;
  3. otherwise negated absolutely.
8. Subject to this clause 13, returns will only be accepted provided that:
  1. the Client has complied with the provisions of clause 13.1; and
  2. H2Ography has agreed that the Goods are defective; and
  3. the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
  4. the Goods are returned in as close a condition to that in which they were delivered as is possible.
9. Notwithstanding clauses 13.1 to 13.8 but subject to the CCA, H2Ography shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
  1. the Client failing to properly maintain or store any Goods;
  2. the Client using the Goods for any purpose other than that for which they were designed;
  3. the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
  4. the Client failing to follow any instructions or guidelines provided by H2Ography;
  5. fair wear and tear, any accident, or a force majeure event
10. H2Ography may in its absolute discretion accept non-defective Goods for return in which case H2Ography may require the Client to pay handling fees of up to twenty-five percent (25%) of the value of the returned Goods plus any freight costs.
11. Notwithstanding anything contained in this clause if H2Ography is required by a law to accept a return then H2Ography will only accept a return on the conditions imposed by that law.
Intellectual Property
1. H2Ography owns (and this agreement does not transfer ownership of) all intellectual property rights (including, without limitation, copyright, trademarks registered designs, patents and know-how in, or in connection with, or relating to, the Goods.
2. The Client shall not alter, remove, or in any way tamper with, any of the trademarks or other marks or numbers of H2Ography. Any software supplied by H2Ography may be used by the Client only on the equipment configuration specified in H2Ography’s quotation.
3. The Client agrees that H2Ography may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or digital media of, or relating to, the Goods which H2Ography has supplied to the Client.
4. The Client warrants that all specifications or instructions given to H2Ography will not cause H2Ography to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify H2Ography against any action taken by a third party against H2Ography in respect of any such infringement.
Default and Consequences of Default
1. Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at H2Ography’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgement.
2. If the Client owes H2Ography any money the Client shall indemnify H2Ography from and against all costs and disbursements incurred by H2Ography in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, H2Ography’s Contract default fees, and bank dishonour fees).
3. Without prejudice to any other remedies H2Ography may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions H2Ography may suspend or terminate the supply of Goods to the Client. H2Ography will not be liable to the Client for any loss or damage the Client suffers because H2Ography has exercised its rights under this clause.
4. Without prejudice to H2Ography’s other remedies at law H2Ography shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to H2Ography shall, whether or not due for payment, become immediately payable if:
  1. any money payable to H2Ography becomes overdue, or in H2Ography’s opinion the Client will be unable to make a payment when it falls due;
  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; or
  3. a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
1. H2Ography may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice H2Ography shall repay to the Client any money paid by the Client for the Goods. H2Ography shall not be liable for any loss or damage whatsoever arising from such cancellation.
2. In the event that the Client cancels Delivery, the Client shall be liable for any and all loss incurred (whether direct or indirect) by H2Ography as a direct result of the cancellation (including, but not limited to, any loss of profits).
3. Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
Privacy Act 1988
1. The Client acknowledges that information collected by H2Ography from the Client may be used and accessed in accordance with this clause 17 and H2Ography’s privacy policy; a copy of which is available at www.H2Ography.com.au.
2. The Client agrees for H2Ography to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by H2Ography.
3. The Client agrees that H2Ography may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
  1. to assess an application by the Client; and/or
  2. to notify other credit providers of a default by the Client; and/or
  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
  4. to assess the creditworthiness of the Client including the Client’s repayment historyin the preceding two years.
4. The Client consents to H2Ography being given a consumer credit report to collect overdue payment on commercial credit.
5. The Client agrees that personal credit information provided may be used and retained by H2Ography for the following purposes (and for other agreed purposes or requiredby):
  1. the provision of Goods; and/or
  2. analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
  3. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
  4. enabling the collection of amounts outstanding in relation to the Goods.
6. H2Ography may give informationabout the Client to a CRB for the following purposes:
  1. to obtain a consumer credit report;
  2. to allow the CRB to create or maintain a credit information file about the Client including credit history.
7. The information given to the CRB may include:
  1. personal information as outlined in 17.2 above;
  2. name of the credit provider and that H2Ography is a current credit provider to the Client;
  3. whether the credit provider is a licensee;
  4. type of consumer credit;
  5. details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amountrequested);
  6. advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and H2Ography has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
  7. information that, in the opinion of H2Ography, the Client has committed a serious credit infringement;
  8. advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
8. The Client shall have the right to request (by e-mail) fromH2Ography:
  1. a copy of the information about the Client retained by H2Ography and the right to request that H2Ography correct any incorrect information; and
  2. that H2Ography does not disclose any personal information about the Client for the purpose of direct marketing.
9. H2Ography will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
10. The Client can make a privacy complaint by contacting H2Ography via e-mail or through H2Ography’s website at www.H2Ography.com.au. H2Ography will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
Force Majeure
1. Where H2Ography or the Client is either wholly or in part is unable by reason of, an Act of God, strike, lockout, or other interference with work, war, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental restraint or embargo, unavailability or delay in availability of Goods, or transport, inability or delay in obtaining government approvals, or any other cause which is not reasonably within the control of the affected party (i.e. a force majeure event), to carry out any obligation under this agreement and that party:
  1. gives the other party prompt notice of that force majeure with full particulars of the probable extent to which it will be unable to perform, or be delayed in performing its obligations under thisagreement; and
  2. uses all possible diligence to remove that force majeure as soon as possible; then those obligations shall be suspended so far as it is affecte\d by the force majeure event and during its continuance provided that;
  3. an obligation to pay money is never excused by force majeure; and
  4. the requirement that any force majeure event shall be removed with all possible diligence shall not require the settlement of strikes, lockouts, or other labour disputes, or claims or demands by any government, on terms contrary to the wishes of the party affected.
General
1. The failure by H2Ography to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect H2Ography’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
2. These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria, the state in which H2Ography has its principal place of business, and are subject to the jurisdiction of the Courts in that state.
3. Subject to clause 13, H2Ography shall be under no liability whatsoever to the Client for (and the Client indemnifies H2Ography against) any indirect/incidental and/or consequential loss or damages, expense (including loss of profit, costs of business interruption), loss of opportunities, personal injury, or any like claims, suffered by the Client arising from any use of, or incidental to, a force majeure event, or their failure to operate, arising out of H2Ography’s negligence or breach of these terms and conditions (alternatively H2Ography’s liability shall be limited to damages which under no circumstances shall exceed the Price).
4. The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by H2Ography nor to withhold payment of any invoice because part of that invoice is in dispute.
5. H2Ography may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
6. The Client agrees that H2Ography may amend these terms and conditions at any time. If H2Ography makes a change to these terms and conditions, then that change will take effect from the date on which H2Ography notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for H2Ography to provide Goods to the Client.
7. The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
8. The Client acknowledges that the provision of the United Nations Convention on contracts for the International Sale of Goods is expressly excluded to the supply of Goods by H2Ography to the Client.

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