1.1 “TGM” means Tennisgear Management Pty Ltd T/A Tennisgear, its successors and assigns or any person acting on behalf of and with the authority of Tennisgear Management Pty Ltd T/A Tennisgear.
1.2 “Client” means the person/s buying the Goods/Services (and/or hiring Equipment) as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by TGM to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Equipment” means all Equipment including any accessories supplied on hire by TGM to the Client (and where the context so permits shall include any supply of Services). The Equipment shall be as described on the invoices, quotation, authority to hire, or any other work authorisation form provided by TGM to the Client.
1.5 “Price” means the Price payable for the Goods/Services and/or Equipment hire as agreed between TGM and the Client in accordance with clause 5 below
2.1 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 or accepts delivery of the Goods/Services/Equipment.
2.2 These terms and conditions may only be amended with TGM’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Client and TGM.
2.3 None of TGM’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of TGM in writing nor is TGM bound by any such unauthorised statements.
2.4 These terms and conditions are meant to be read in conjunction with the Terms and Conditions posted on TGM’s website. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
2.5 The Client accepts and acknowledges that a minimum of fourteen (14) days’ notice is required in the event that the Client wishes to cancel a regular booking with TGM. If the Client fails to provide the minimum notice, and does not attend the booked class/session, then the Client agrees to pay TGM for the missed class/session regardless.
2.6 Whilst TGM will endeavour to provide the Client with the coach requested, TGM reserves the right to substitute a different coach at TGM’s sole discretion where the requested coach is unavailable. Any such substitution shall not be grounds for cancellation by the Client.
3. Electronic Transactions Act 2001
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give TGM 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 TGM as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At TGM’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by TGM to the Client; or
(b) the Price as at the date of delivery of the Goods/Services/Equipment according to TGM’s current price list; or
(c) TGM’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 TGM reserves the right to change the Price if a variation to TGM’s quotation is requested. Any variation from the plan of scheduled Services or specifications of the Goods/Equipment (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to TGM in the cost of taxes, levies, materials and labour or where additional Services are required due to the discovery of hidden or unidentifiable difficulties including, but not limited to, poor weather conditions, safety considerations, limited availability of Goods/Equipment or Services, etc which are only discovered on commencement of the Services) will be charged for on the basis of TGM’s quotation and will be shown as variations on the invoice.
5.3 At TGM’s sole discretion a deposit may be required.
5.4 Time for payment for the Goods/Services/Equipment being of the essence, the Price will be payable by the Client on the date/s determined by TGM, which may be:
(a) on delivery of the Goods/Services/Equipment;
(b) before delivery of the Goods/Services/Equipment;
(c) by way of instalments/progress payments in accordance with TGM’s payment schedule;
(d) fourteen (14) days following the date of the invoice which is posted to the Client’s address or address for notices;
(e) the date specified on any invoice or other form as being the date for payment; or
(f) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by TGM.
5.5 Payment may be made by cash, cheque, electronic/on-line banking, credit card or by any other method as agreed to between the Client and TGM.
5.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Client must pay to TGM an amount equal to any GST TGM must pay for any supply by TGM under this or any other agreement for the supply of the Goods/Services/hire of the Equipment. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods/Equipment
6.1 Delivery (“Delivery”) of the Goods/Equipment is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods/Equipment at TGM’s address; or
(b) TGM (or TGM’s nominated carrier) delivers the Goods/Equipment to the Client’s nominated address even if the Client is not present at the address.
6.2 At TGM’s sole discretion the cost of delivery is included in the Price.
6.3 Any time or date given by TGM to the Client is an estimate only. The Client must still accept delivery of the Goods/Equipment even if late and TGM will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.
7. Provision of the Services
7.1 Any time specified by TGM for provision of the Services is an estimate only and TGM will not be liable for any loss or damage incurred by the Client as a result of any delay (including any costs, claims, suits, demands or any consequential damages or losses suffered by the Client). However both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that TGM is unable to provide the Services as agreed solely due to any action or inaction of the Client then TGM shall be entitled to charge the Client for any expenses or additional costs incurred by TGM as a result of the delay, and/or a reasonable fee for re-providing the Services at a later time and date (where required).
7.2 TGM reserves the right to postpone all Services arranged in the event of adverse environmental conditions, including adverse weather conditions that may pose a safety risk for all parties. The Client accepts in this instance rescheduling for provision of the Services shall not attract additional costs or expenses as per clause 7.1.
7.3 The Client accepts that any Services booked shall be subject to TGM’s approval, and at a time convenient to TGM.
8. Online Ordering
8.1 The Client acknowledges and agrees that:
(a) TGM does not guarantee the websites performance or availability of any of its Goods/Services; and
(b) on-line ordering may be unavailable from time to time for regularly scheduled maintenance and/or upgrades; and
(c) there are inherent hazards in electronic distribution and as such TGM cannot warrant against delays or errors in transmitting data between the Client and TGM including orders, and you agree that to the maximum extent permitted by law, TGM will not be liable for any losses which the Client suffers as a result of online-ordering not being available or for delays or errors in transmitting orders.
8.2 TGM reserve the right to terminate your order if it learns that you have provided false or misleading information, interfered with other users or the administration of TGM Services, or violated these terms and conditions.
9.1 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.
9.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, TGM is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TGM is sufficient evidence of TGM’s rights to receive the insurance proceeds without the need for any person dealing with TGM to make further enquiries.
9.3 If the Client requests TGM to leave Goods outside TGM’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Client’s sole risk.
9.4 The Client acknowledges that variations of colour and shade are inherent in fabric dye lots. While every effort will be taken by TGM to match colour and shade of the Goods, TGM shall not be liable for any loss, damage or costs, howsoever arising resulting from any variation in colour and shading between batches of the Goods or sale samples and the final Goods supplied.
9.5 Any advice, recommendation, information, assistance or service provided by TGM in relation to Goods or Services supplied is given in good faith, is based on TGMs own knowledge and experience and shall be accepted without liability on the part of TGM and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
10.1 The Client acknowledges that:
(a) all descriptive specifications, illustrations, drawings, data, dimensions and weights stated in TGM’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 TGM;
(b) while TGM may have provided information or figures to the Client regarding the performance of the Goods, the Client acknowledges that TGM has given these in good faith, and are estimates.
10.2 The Client shall be responsible for ensuring that the Goods ordered are suitable for their intended use.
10.3 TGM reserves the right to substitute comparable Goods (or components of the Goods), and in all such cases TGM will notify the Client in advance of any such substitution.
11. Client Information
11.1 The Client, by entering into this agreement, represents to TGM that they confirm they have no medical condition or impairment that may be affected by the provision of the Services including, but not limited to, recent muscle or tendon damage, limb injuries including fractures, heart or blood vessel problems such as a heart attack, heart failure, angina or stroke, epilepsy, a recent head injury, stomach or bowel problems, cancer, a current infectious disease, limb injuries including fractures, psychiatric problems, any recent surgery.
12.1 TGM shall be under no liability whatsoever unless written notice of any claim, giving full particulars of any alleged error, omission, or failure to comply with the description of the contracted Services or quotation, is received by TGM within twenty-four (24) hours after provision of the Services. The Client shall afford TGM an opportunity to review the Services within a reasonable time following such notification if the Client believes the Services are defective in any way.
12.2 The failure to notify a claim within the time limits under clause 12.1 is evidence of satisfactory performance by TGM of its obligations under this agreement.
12.3 For defective Services, which TGM has agreed in writing that the Client is entitled to reject, TGM’s liability is limited to either (at TGM’s discretion) rectifying the Services or providing the Services again, provided that the Client has complied with the provisions of clause 12.1.
13. Title To Goods
13.1 TGM and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid TGM all amounts owing to TGM; and
(b) the Client has met all of its other obligations to TGM.
13.2 Receipt by TGM 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.
13.3 It is further agreed that:
(a) until ownership of the Goods passes to the Client in accordance with clause 13.1 that the Client is only a bailee of the Goods and must return the Goods to TGM on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for TGM and must pay to TGM the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for TGM and must pay or deliver the proceeds to TGM on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of TGM and must sell, dispose of or return the resulting product to TGM as it so directs.
(e) the Client irrevocably authorises TGM to enter any premises where TGM believes the Goods are kept and recover possession of the Goods.
(f) TGM may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of TGM.
(h) TGM may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
14. Personal Property Securities Act 2009 (“PPSA”)
14.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
14.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods/Services/Equipment that has previously been supplied and that will be supplied in the future by TGM to the Client.
14.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which TGM may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii)correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii);
(b) indemnify, and upon demand reimburse, TGM 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/Services/Equipment charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of TGM;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods/Services/Equipment in favour of a third party without the prior written consent of TGM;
(e) immediately advise TGM of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
14.4 TGM 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.
14.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
14.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by TGM, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
14.8 The Client must unconditionally ratify any actions taken by TGM under clauses 14.3 to 14.5.
14.9 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.
15. Security and Charge
15.1 In consideration of TGM agreeing to supply the Goods/Services/Equipment, 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).
15.2 The Client indemnifies TGM from and against all TGM’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising TGM’s rights under this clause.
15.3 The Client irrevocably appoints TGM and each director of TGM as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 15 including, but not limited to, signing any document on the Client’s behalf.
16. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
16.1 The Client must inspect the Goods/Equipment on delivery and must within seven (7) days of delivery notify TGM 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/Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow TGM to inspect the Goods/Equipment.
16.2 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-Excluded Guarantees).
16.3 TGM acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
16.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, TGM makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods/Services/Equipment. TGM’s liability in respect of these warranties is limited to the fullest extent permitted by law.
16.5 If the Client is a consumer within the meaning of the CCA, TGM’s liability is limited to the extent permitted by section 64A of Schedule 2.
16.6 If TGM is required to replace the Goods under this clause or the CCA, but is unable to do so, TGM may refund any money the Client has paid for the Goods.
16.7 If the Client is not a consumer within the meaning of the CCA, TGM’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by TGM at TGM’s sole discretion;
(b) limited to any warranty to which TGM is entitled, if TGM did not manufacture the Goods;
(c) otherwise negated absolutely.
16.8 Subject to this clause 16, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 16.1; and
(b) TGM has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
16.9 Notwithstanding clauses 16.1 to 16.8 but subject to the CCA, TGM shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods/Equipment;
(b) the Client using the Goods/Equipment for any purpose other than that for which they were designed;
(c) the Client continuing the use of the Goods/Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by TGM;
(e) fair wear and tear, any accident, or act of God.
16.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by TGM as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that TGM has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 16.10.
16.11 TGM may in its absolute discretion accept non-defective Goods for return in which case TGM may require the Client to pay handling fees of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
16.12 Notwithstanding anything contained in this clause if TGM is required by a law to accept a return then TGM will only accept a return on the conditions imposed by that law.
17. Intellectual Property
17.1 Where TGM has designed, drawn or developed Goods/Equipment for the Client, then the copyright in any designs and drawings and documents shall remain the property of TGM.
17.2 The Client warrants that all designs, specifications or instructions given to TGM will not cause TGM to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify TGM against any action taken by a third party against TGM in respect of any such infringement.
17.3 The Client agrees that TGM may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which TGM has created for the Client.
- 18. Default and Consequences of Default
18.1 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 TGM’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
18.2 If the Client owes TGM any money the Client shall indemnify TGM from and against all costs and disbursements incurred by TGM in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, TGM’s contract default fee, and bank dishonour fees).
18.3 Without prejudice to any other remedies TGM may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions TGM may suspend or terminate the supply of Goods/Services/Equipment to the Client. TGM will not be liable to the Client for any loss or damage the Client suffers because TGM has exercised its rights under this clause.
18.4 Without prejudice to TGM’s other remedies at law TGM shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to TGM shall, whether or not due for payment, become immediately payable if:
(a) any money payable to TGM becomes overdue, or in TGM’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
19.1 TGM may cancel any contract to which these terms and conditions apply or cancel delivery of Goods/Services/Equipment at any time before the Goods/Services/Equipment are due to be delivered by giving written notice to the Client. On giving such notice TGM shall repay to the Client any money paid by the Client for the Goods/Services/Equipment. TGM shall not be liable for any loss or damage whatsoever arising from such cancellation.
19.2 In the event that the Client cancels delivery of the Goods/Services/Equipment the Client shall be liable for any and all loss incurred (whether direct or indirect) by TGM as a direct result of the cancellation (including, but not limited to, any loss of profits).
20.1 A full refund will only be given in the event of adverse weather conditions or any other reason where TGM is prevented from providing the Services.
20.2 Where Services have commenced, and are then discontinued by TGM for any reason, the amount of the refund given shall be at the sole discretion of TGM, and subject to the extent of the Services already provided.
20.3 The Client acknowledges that under no circumstances shall TGM be liable for the Client’s inability to complete the Services for any reason, and such event shall not validate the refund of the Price by TGM.
21. Privacy Act 1988
21.1 The Client agrees for TGM 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 TGM.
21.2 The Client agrees that TGM may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
21.3 The Client consents to TGM being given a consumer credit report to collect overdue payment on commercial credit.
21.4 The Client agrees that personal credit information provided may be used and retained by TGM for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods/Services/Equipment; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods/Services/Equipment; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods/Services/Equipment.
21.5 TGM may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
21.6 The information given to the CRB may include:
(a) personal information as outlined in 21.1 above;
(b) name of the credit provider and that TGM is a current credit provider to the Client;
(c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) 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 TGM has been paid or otherwise discharged and all details surrounding that discharge(e.g. dates of payments);
(g) information that, in the opinion of TGM, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
21.7 The Client shall have the right to request (by e-mail) from TGM:
(a) a copy of the information about the Client retained by TGM and the right to request that TGM correct any incorrect information; and
(b) that TGM does not disclose any personal information about the Client for the purpose of direct marketing.
21.8 TGM 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.
21.9 The Client can make a privacy complaint by contacting TGM via e-mail. TGM 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.
22. Equipment Hire
22.1 Equipment shall at all times remain the property of TGM and is returnable on demand by TGM. In the event that Equipment is not returned to TGM in the condition in which it was delivered TGM retains the right to charge the Client the full cost of repairing the Equipment. In the event that Equipment is not returned at all TGM shall have right to charge the Client the full cost of replacing the Equipment.
22.2 The Client shall;
(a) keep the Equipment in their own possession and control and shall not assign the benefit of the Equipment nor be entitled to a lien over the Equipment.
(b) not alter or make any additions to the Equipment including but without limitation altering, make any additions to, defacing or erasing any identifying mark, plate or number on or in the Equipment or in any other manner interfere with the Equipment.
(c) keep the Equipment, complete with all parts and accessories, clean and in good order as delivered, and shall comply with any maintenance schedule as advised by TGM to the Client.
22.3 The Client accepts full responsibility for the safekeeping of the Equipment and the Client agrees to insure, or self insure, TGM’s interest in the Equipment and agrees to indemnify TGM against physical loss or damage including, but not limited to, the perils of accident, fire, theft and burglary and all other usual risks and will effect adequate Public Liability Insurance covering any loss, damage or injury to property or persons arising out of the use of the Equipment. Further the Client will not use the Equipment nor permit it to be used in such a manner as would permit an insurer to decline any claim.
23.1 The failure by TGM to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect TGM’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.
23.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland in which TGM has its principal place of business, and are subject to the jurisdiction of the courts in Queensland.
23.3 Subject to clause 16 TGM shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by TGM of these terms and conditions (alternatively TGM’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods/Services/Equipment hire).
23.4 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 TGM nor to withhold payment of any invoice because part of that invoice is in dispute.
23.5 The Client agrees that TGM may amend these terms and conditions at any time. If TGM makes a change to these terms and conditions, then that change will take effect from the date on which TGM notifies the Client of such change. The Client will be taken to have accepted such changes if the Client makes a further request for TGM to provide Goods/Services/Equipment to the Client.
23.6 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
23.7 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.