1. Definitions and interpretation

1.1 In these Terms:

• ACL means the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
• Contract means the contract for supply of Goods made under clause 2, comprising the Quotation, these Terms, Fuseco's order acceptance and any Technical Documents Fuseco expressly refers to.
• Customer means the person or entity that requests a Quotation or places an Order.
• Special Order Goods means Goods that are custom-made, made to order, specially procured, modified to the Customer's requirements, or not ordinarily stocked by Fuseco (including "indent" Goods).
• Fuseco means Fuseco Pty Ltd as trustee for The Fuseco Unit Trust (ABN 75 740 343 256).
• Goods means all goods, equipment, software and firmware supplied by Fuseco, and any related services described in the Quotation.
• Manufacturer means the manufacturer or supplier of the Goods (including Fuseco's overseas suppliers).
• Order means the Customer's request to purchase Goods.
• PPSA means the Personal Property Securities Act 2009 (Cth).
• Price means the price of the Goods stated in the Quotation or order acceptance.
• Quotation means a written quotation issued by Fuseco.
• Technical Documents means drawings, data sheets, specifications and application notes.

1.2 A reference to a law includes that law as amended or replaced. "Including" is not a word of limitation.

2. Application, formation and priority

2.1 These Terms apply to all Quotations, Orders and supplies of Goods by Fuseco and, together with the Quotation and any Technical Documents Fuseco expressly refers to, form the entire agreement between Fuseco and the Customer about the Goods.

2.2 A Quotation is an invitation to treat only. A Contract is formed when Fuseco accepts an Order in writing (including by email) or, if earlier, when Fuseco delivers the Goods.

2.3 These Terms prevail over any terms in the Customer's purchase order, tender, correspondence or other document, which are rejected and excluded, unless a director of Fuseco expressly agrees otherwise in a signed document that refers to the clause being varied.

2.4 Placing an Order, or accepting delivery of Goods, is acceptance of these Terms. Supplying Goods is not acceptance of the Customer's terms.

2.5 If Fuseco and the Customer have signed a separate supply agreement covering the Goods, that agreement prevails to the extent of any inconsistency.

2.6 Technical Documents, samples, and Fuseco's advice are provided as general guidance only. See clause 13.

3. Quotations and Prices

3.1 A Quotation is valid for the period stated in it or, if no period is stated, it is valid for 30 days. Fuseco may withdraw or change a Quotation before it accepts an Order.

3.2 Prices are in Australian dollars unless stated otherwise and exclude GST, freight, insurance, duties, taxes, and other charges, unless stated otherwise. The Customer must pay GST on any taxable supply at the same time as the Price.

3.3 Quotations state the currency on which the Price is based and are valid for the period stated. Fuseco may change or withdraw a Quotation before it accepts an Order, including to reflect exchange rate movements. On Fuseco's written acceptance of an Order, the Price is fixed and will not be adjusted for exchange rate movements.

3.4 Despite clause 3.3, Fuseco may adjust the Price after acceptance only to the extent of: (a) costs resulting from a change in scope, specification or quantity requested by the Customer; (b) costs resulting from delay or postponement caused by the Customer or its approvals, including foreign exchange contract extension, break or rollover costs; and (c) new or increased duties, tariffs, taxes or government charges imposed after acceptance. Fuseco will give written notice with reasonable supporting detail.

4. Payment, credit and security

4.1 Approved account customers must pay invoices as per the terms of their account agreement, unless otherwise stated in the Quotation or agreed in writing. All other Customers must pay before dispatch.

4.2 For Special Order Goods, Fuseco reserves the right to ask for a full upfront payment, partial deposit or staggered payment schedule, depending on the circumstances. In these cases, these terms are outlined in the quotation. Fuseco may invoice milestones in advance of delivery and may begin procurement only once the deposit is received.

4.3 All account holders must make their payment by EFT. If a customer is paying 100% of the order value upfront, payment can be made via EFT or credit card. The Customer must pay in full without set-off, counterclaim or deduction, except as required by law.

4.4 If a payment is overdue Fuseco may: (a) charge interest at 8% per annum above the Official Cash Rate from the due date until payment; (b) recover reasonable costs of recovery, including legal costs on a solicitor-and-own-client basis and collection agency fees; (c) suspend further deliveries, work and credit; and (d) withdraw credit terms.

4.5 Fuseco may at any time set, vary or require security for a credit limit (including a director's guarantee, deposit or letter of credit) if Fuseco reasonably considers the Customer's credit position has changed.

4.6 If the Goods are supplied for construction work, the security of payment legislation of the relevant State may apply and cannot be contracted out of. Nothing in these Terms limits Fuseco's or the Customer's rights under that legislation.

5. Orders, variations and cancellation

5.1 An Order may be varied or cancelled only with Fuseco's prior written consent, which Fuseco may refuse or give on conditions. Any change in scope, specification or quantity may affect Price and delivery.

5.2 Special Order Goods cannot be cancelled once the Order is accepted, except under clauses 16.3 or 17, or with Fuseco's written consent.

5.3 Standard stock Goods may be cancelled before dispatch with Fuseco's consent, and clause 8 applies.

5.4 If Fuseco agrees to a cancellation, or the Customer is entitled to cancel, the Customer must pay Fuseco: (a) the Price of Goods completed or delivered; (b) costs incurred or committed to the Manufacturer or third parties, including Manufacturer cancellation, restocking and work-in-progress charges; (c) reasonable storage, freight and handling costs. The Customer acknowledges these amounts are a genuine estimate of Fuseco's legitimate interests and are not a penalty.

5.5 If the Customer asks for postponement of delivery, Fuseco may charge storage, insurance and Manufacturer costs, and may invoice the balance of the Price on the original date.

6. Delivery and risk

6.1 Delivery dates and lead times are estimates only, depend on the Manufacturer, customs and carriers and are not guaranteed. Time is not of the essence. Fuseco will use reasonable endeavours to meet estimated dates and will keep the Customer reasonably informed of material delays.

6.2 Fuseco may deliver in instalments and may invoice each instalment separately. A delay in one instalment does not entitle the Customer to cancel the others.

6.3 To the extent permitted by law, Fuseco is not liable for delay in delivery, and does not offer, accept or agree to liquidated damages, delay damages or similar payments, unless a director of Fuseco agrees in a signed document.

6.4 Delivery occurs when the Goods are: (a) delivered to the delivery location stated in the Order acceptance, or if none, Fuseco's premises; or (b) handed to the Customer's nominated carrier. Unless otherwise agreed, the delivery location is specified in the customer order and the conditions are as specified in Incoterms 2020. The Customer is responsible for unloading, handling and safe storage.

6.5 Risk in the Goods passes to the Customer on delivery. The Customer must insure the Goods from the time risk passes until title passes to the Customer and, in any event, for their full replacement value. Any insurance Fuseco arranges is for Fuseco's own benefit only.

6.6 The Customer must inspect the Goods on delivery and note any visible damage or shortage on the delivery documents and notify Fuseco and the carrier in writing within 2 business days of delivery. Concealed transit damage must be reported within 7 days of delivery.

6.7 If the Customer cannot or will not take delivery when the Goods are ready, Fuseco may treat the Goods as delivered, risk passes to the Customer, Fuseco may store the Goods at the Customer's cost and risk and invoice any amount then due, and the Customer must pay reasonable storage and insurance costs.

7. Inspection, acceptance and claims

7.1 Claims for shortages, incorrect supply or visible damage must be made in writing within 7 days of delivery, with supporting evidence. Otherwise, to the extent permitted by law, the Customer is taken to have accepted the Goods as delivered.

7.2 Where the Contract provides for factory acceptance testing or inspection, the Customer must attend at the agreed time. If the Customer does not attend, or does not give written notice of non-compliance within 5 business days after the test, the Goods are taken to be accepted.

7.3 The Goods are taken to be accepted on the earlier of: (a) written acceptance; (b) the end of the inspection period in clause 7.1 or 7.2; and (c) first use, installation, energisation or on-sale.

7.4 Acceptance does not limit the Customer's rights under clause 11 for defects not reasonably discoverable on inspection.

8. Returns, credits and restocking (standard stock Goods)

8.1 Returns and credits require Fuseco's prior written approval, except where the Goods were incorrectly supplied or the ACL requires otherwise.

8.2 Approved returns must be: (a) unused and in original, resaleable condition and packaging; (b) returned at the Customer's cost and risk; and (c) accompanied by a Fuseco Goods Return Authority (GRA).

8.3 A restocking charge of 20% of the invoice value or $20, whichever is greater, plus any Manufacturer restocking or freight charge, applies, unless the return is due to Fuseco's error. The Customer acknowledges this is a reasonable estimate of Fuseco's costs.

8.4 Special Order Goods and Goods that are non-standard, cut to length, programmed, or specially ordered are not returnable, except where defective under clause 11 or non-conforming under the Contract.

9. Special Order Goods

9.1 Special Order Goods are procured or made specifically for the Customer. Prior to the order placement, the Customer must supply complete and accurate specifications. Once the drawings and data are proposed by the manufacturer, the Customer must approve them in writing. Delivery dates may be extended for any Customer related delay in approvals, information, access, payment or Customer-requested changes.

9.2 Special Order Goods cannot be cancelled once the Order is accepted (refer to Clause 5.2) and are not returnable, except where defective under clause 11 or non-conforming under the Contract (refer to clause 8.4).

9.3 Fuseco may substitute components or make minor changes to the Goods, if the Goods still substantially conform to the agreed specification and performance. Manufacturer tolerances in the Technical Documents apply.

9.4 The Goods are supplied only for the application and ratings stated in the Contract. Fuseco does not warrant the Goods for any other use.

9.5 Software, firmware and embedded programs supplied with the Goods are licensed (not sold) on the Manufacturer's licence terms and only for use with the Goods.

10. Retention of title and PPSA

10.1 Title in the Goods remains with Fuseco until Fuseco has received payment in full of all amounts owing for the Goods.

10.2 Until title passes, the Customer holds the Goods as bailee for Fuseco, must store them separately and identifiably, must keep them insured, and must not sell, encumber, install in a way that prevents removal, or otherwise dispose of them (except in the ordinary course of its business where it holds the proceeds on trust for Fuseco).

10.3 If payment is overdue, Fuseco may, on reasonable notice, enter any premises where the Goods are located to inspect and recover them, and the Customer grants Fuseco an irrevocable licence to do so.

10.4 These Terms create a security interest in the Goods and their proceeds in favour of Fuseco. The Customer must do everything Fuseco reasonably requires to register that interest on the Personal Property Securities Register (including giving information), consents to registration, and waives its right to receive notice of any verification statement. The Customer must not register a financing change statement without Fuseco's consent. To the extent permitted by law, the parties contract out of sections 95, 96, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA.

11. Warranty and Australian Consumer Law

11.1 Nothing in these Terms excludes, restricts or modifies any consumer guarantee, right or remedy under the ACL or any other law that cannot lawfully be excluded, restricted or modified.

11.2 Subject to clause 11.1, Fuseco warrants that the Goods will, for the Warranty Period, be free from defects in design (if designed by Fuseco or the Manufacturer), materials and workmanship when used in accordance with these Terms.

11.3 The Warranty Period is the lesser of: (a) the warranty period Fuseco receives from the Manufacturer; and (b) 12 months from commissioning or 18 months from the date of shipment or delivery, whichever is earlier. Fuseco will provide a copy of the Manufacturer's warranty terms on request.

11.4 The warranty does not apply, and Fuseco has no liability for, defects or failures caused by: fair wear and tear; misuse, abuse or accident; failure to handle, store, install, commission, use or maintain the Goods in accordance with the Manufacturer's instructions, applicable standards and good industry practice; installation or commissioning by persons not appropriately licensed or qualified; operation outside rated or specified conditions (including voltage, current, temperature and environment); power supply faults, surges or lightning; modification or repair without Fuseco's written approval; Customer-supplied specifications, designs or materials; or events outside Fuseco's control.

11.5 The Customer must notify Fuseco in writing of a defect within 14 days after becoming aware of it (and in any event within the Warranty Period), provide reasonable details and access to the Goods for inspection, and stop using the Goods if continued use may cause damage or danger. Fuseco may require the defective Goods to be returned.

11.6 If a valid claim is made, Fuseco will, at its option, repair or replace the defective Goods, or supply equivalent Goods, or refund or credit the Price of the defective Goods. Where the ACL applies and the Goods are not ordinarily acquired for personal, domestic or household use, then to the extent permitted by section 64A of the ACL, Fuseco's liability for a failure to comply with a consumer guarantee is limited to replacing the Goods or supplying equivalent Goods, repairing the Goods, or paying the cost of replacement or repair.

11.7 Repaired or replaced Goods are warranted for the balance of the original Warranty Period or 3 months, whichever is longer, but no more than 24 months from original delivery.

11.8 Unless the ACL requires otherwise, the costs of removal, reinstallation, access, site works, transport and customs of defective or replacement Goods are at the Customer's cost and risk.

11.9 To the extent permitted by law, all other warranties, conditions, guarantees and terms implied by statute, custom or general law (including under the Goods Act 1958 (Vic) and the ACL) are excluded.

12. Limitation of liability

12.1 To the extent permitted by law, Fuseco is not liable to the Customer, under or in connection with the Contract or the Goods, for any: (a) loss of profit, revenue, income, anticipated savings, contract, opportunity, goodwill or reputation; (b) production stoppage, business interruption or downtime; (c) costs of replacement or substitute goods, services, power or hire; (d) liquidated damages, penalties or delay damages payable to third parties; (e) economic loss, or any indirect, special or consequential loss; or (f) exemplary or punitive damages, whether or not foreseeable.

12.2 To the extent permitted by law, Fuseco's total aggregate liability arising out of or in connection with the Contract is limited to the Price paid or payable for the Goods which give rise to the claim. Fuseco's liability to the Customer for a breach of a consumer guarantee is limited under clause 11.6.

12.3 Clauses 12.1 and 12.2 apply however the liability arises, including in contract, warranty, tort (including negligence), statute, indemnity or otherwise, and survive completion, termination, rescission or repudiation of the Contract.

12.4 Fuseco's liability is reduced to the extent that the Customer (or anyone it is responsible for) caused or contributed to the loss, including by failing to mitigate it.

12.5 Fuseco is not liable for any claim unless the Customer commences proceedings within 12 months of becoming aware of the circumstances giving rise to the claim.

12.6 Nothing in these Terms limits liability that cannot lawfully be limited, including for death or personal injury caused by Fuseco's negligence or for fraud.

12.7 A higher liability cap may be agreed only in a signed document approved by a director of Fuseco and may be priced into the Quotation.

13. Customer responsibilities, advice and indemnity

13.1 The Customer is solely responsible for selecting the Goods and for confirming their suitability for its purposes, including ratings, system compatibility, fault levels, and compliance with applicable laws, standards, regulations and site requirements. The Customer must ensure the Goods are installed, commissioned and operated by suitably licensed and qualified persons, in accordance with the Manufacturer's instructions, relevant Australian Standards and electrical safety laws.

13.2 Advice, recommendations, drawings, calculations, samples, power quality studies and site appraisals given by Fuseco are provided in good faith for general guidance, are not warranties or representations as to the result or suitability, and the Customer must obtain its own independent advice. The Customer acknowledges it has not relied on any statement by Fuseco except as set out in the Contract. This clause does not exclude liability for misleading or deceptive conduct where such liability cannot lawfully be excluded.

13.3 Unloading, handling, storage, installation, commissioning, testing and integration of the Goods are the Customer's responsibility unless Fuseco has agreed in writing to supply those services.

13.4 The Customer indemnifies Fuseco against any loss, claim, damage or cost (including reasonable legal costs) arising from a claim by a third party, to the extent caused by: (a) the Customer's use, modification, installation or on-sale of the Goods other than as permitted by the Contract; (b) specifications, designs or instructions provided by the Customer, including any claim that they infringe a third party's intellectual property rights; or (c) the Customer's breach of the Contract or negligence.

13.5 If the Customer on-sells the Goods, it must: (a) pass on to its buyer the limitations and exclusions in these Terms; (b) not give any warranty or representation on Fuseco's behalf; and (c) indemnify Fuseco against any liability beyond that for which Fuseco is liable under the Contract.

13.6 Fuseco gives no indemnity in connection with the Contract. If a director of Fuseco agrees in a signed document to give an indemnity, it is limited to loss of or damage to third party property, or personal injury, to the extent caused by Fuseco's negligent act or omission, and is subject to the cap in clause 12.

14. Intellectual property and confidentiality

14.1 All intellectual property rights in the Goods, Technical Documents, software and Fuseco's quotations, designs and data remain with Fuseco or the Manufacturer (as applicable). The Customer receives a non-exclusive, non-transferable right to use them only for the Goods' intended purpose.

14.2 The Customer must keep confidential and not disclose to any third party without Fuseco's written consent, any non-public Technical Documents, pricing or Fuseco information, except as required by law or to its professional advisers and those who need to know for operating, maintaining or on-selling the Goods, who must be bound to the same obligations.

14.3 The Customer warrants that any design, specification or material it provides does not infringe any third party's intellectual property rights and grants Fuseco and the Manufacturer a licence to use it to perform the Contract.

15. Compliance

15.1 Each party must comply with applicable laws, including work health and safety, anti-bribery and corruption, privacy, modern slavery, sanctions and export control laws.

15.2 Fuseco may refuse, delay or cancel supply without liability if it reasonably believes that supply would breach any law, sanction, or Manufacturer's export or end-use restriction, and the Customer must not re-export the Goods in breach of those restrictions.

16. Force majeure

16.1 Fuseco is not liable for any failure or delay in performing the Contract caused by an event beyond its reasonable control, including: acts of God, fire, flood, storm; pandemic or epidemic; war, terrorism, civil unrest; strikes or industrial action; transport, port, customs or shipping disruption; governmental action, change in law, embargoes or sanctions; shortage or unavailability of materials, components or labour; and failure, delay or default by a Manufacturer or other supplier not caused by Fuseco's own breach.

16.2 Fuseco must notify the Customer of the event as soon as reasonably practicable and use reasonable endeavours to resume performance. The time for performance is extended by the period of delay, and Fuseco may adjust the Price for cost increases caused by the event.

16.3 If the event continues for more than 120 days, either party may cancel the affected part of the Contract by written notice, in which case clause 5.4 applies, and the Customer will be refunded any amount paid for Goods which have not been delivered or procured, less the amounts under clause 5.4.

17. Default, suspension and termination

17.1 Fuseco may suspend performance or terminate the Contract by written notice if: (a) the Customer fails to pay an amount by its due date; (b) the Customer breaches the Contract and does not remedy the breach within 7 days of notice; (c) the Customer becomes insolvent, enters administration, liquidation or receivership, or a controller is appointed; or (d) Fuseco reasonably believes the Customer cannot meet its payment obligations.

17.2 On termination, all amounts owing become immediately payable and clauses 4.4, 5.4, 10, 11 to 14 and 19 survive.

18. Notices

Notices must be in writing and sent to the other party's address or email address in the Quotation or most recently notified. Emailed notices are taken to be received at the time sent, unless the sender receives a delivery failure message, but if sent after 5pm or on a non-business day, on the next business day.

19. General

19.1 Assignment and subcontracting. The Customer may not assign the Contract without Fuseco's written consent. Fuseco may assign the Contract and may subcontract any part of its performance.

19.2 Severability. If any provision is invalid or unenforceable, it is severed (or read down) and the rest of the Contract continues to apply.

19.3 Waiver and variation. No waiver or variation is effective unless in writing and signed by a director of Fuseco (in Fuseco's case) or the Customer.

19.4 Electronic execution. The Contract may be accepted and signed electronically and in counterparts.

19.5 Set-off. Fuseco may set off any amount owing by it to the Customer against amounts owed by the Customer to Fuseco.

19.6 Privacy. Fuseco collects, uses and discloses personal information in accordance with its Privacy Policy.

19.7 Minimum order values. Account holders: $20 minimum order value. Non-account holders: $50 minimum order value (excluding GST and freight). Minimums do not apply to Special Order Goods.

19.8 Dispute resolution. The parties must first try to resolve any dispute through good-faith discussions between senior representatives, and if not resolved within 30 days, may refer the dispute to mediation, before commencing court proceedings (other than for urgent injunctive relief or to recover a debt).

20. Governing law

20.1 These Terms and the Contract are governed by the laws of Victoria, Australia, and the Commonwealth of Australia, and the parties submit to the non-exclusive jurisdiction of the courts of Victoria and the Commonwealth courts exercising jurisdiction there.

20.2 The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Contract.