1. TERMS OF TRADE

General
1. These terms of trade apply to all transactions between the
Customer and HIGH GROUND ELECTRICAL (“HGE”) relating
to the provision of Goods and Services, including all quotations,
contracts and variations. These terms of trade take precedence
over terms of trade contained in any document of the Customer
or elsewhere.
2. The variation or waiver of a provision of these terms or a party’s
consent to a departure from a provision by another party is
ineffective unless in writing signed by the parties.
3. HGE may amend any details in a Quote by notice in writing to
the Customer for legitimate business, or legal or regulatory
compliance reasons. Such amended details supersede any
relevant prior detail in dealings between the parties.
Quotes
4. HGE may provide the Customer with a Quote. Any Quote
issued by HGE is valid for 30 days from the date of issue.
5. Quotes are based upon the cost of materials available at the
time of preparation of the Quote and assume the timely supply
by the Customer of necessary material and instructions to HGE.
6. Following provision of a Quote to the Customer, HGE is not
obliged to commence work until the Quote has been accepted
by the Customer by completing an Order form and returning the
form to HGE.
7. HGE reserves the right to amend any Quote before the Order
has been completed to take into account any rise or fall in the
cost of completing the Order. HGE will notify the Customer of
any amendment as soon as practicable, at which point the
amended Quote will be the estimate or Quote for the purposes
of these terms of trade.
8. An indication in a Quote of the time frame for the provision of
the Goods or Services is an estimate only and is not a fixed
time frame. Subject to any obligations in respect of consumer
guarantees under the Australian Consumer Law, this estimate
is not binding upon HGE.
Orders
9. Every Order by the Customer for the provision of Goods or
Services must be submitted in writing on HGE’s standard Order
form (unless otherwise agreed).
10. An Order will not be placed by the Customer unless the Order
clearly identifies the Goods or Services ordered and HGE’s
Quote.
11. Orders must be signed by an authorised representative of the
Customer and must specify the required date of delivery.
12. Placement of an Order by the Customer signifies acceptance by
the Customer of these terms of trade and the most recent
Quote.
13. In Order to protect HGE’s legitimate business, HGE may in its
absolute discretion refuse to provide Goods or Services where:
(a) Goods are unavailable for reasons beyond HGE’s control;
(b) credit limits (where applicable) cannot be agreed upon or
have been exceeded; or
(c) payment for Goods or Services previously provided to the
Customer or any related corporation of the Customer or to
any other party who is, in the reasonable opinion of HGE,
associated with the Customer under the same or another
supply contract, has not been received by HGE.

14. An Order cannot be cancelled without the prior written consent
of HGE. Where an Order is cancelled, the Customer
indemnifies HGE against any Losses incurred by HGE as a
result of the cancellation, including, but not limited to loss of
profit from other orders foregone as a result of the scheduling of
the Order which is subsequently cancelled.
Variations
15. The Customer may request that its Order be varied by providing
a request in writing to HGE. A request for a variation must be
agreed to in writing by HGE in order to have effect.
16. If the Customer wishes to vary its requirements after a Quote
has been prepared or after the placement of an Order, HGE
reserves the right to vary the Quote to include any additional
charge in respect of any extra costs incurred or additional work
carried out due to the variation, in accordance with its then
current charge rates. A revised Quote issued by HGE in respect
of the requested variation supersedes the original Quote. If the
revised Quote only specifies additional work, the Quote for that
additional work will be in addition to the immediately preceding
Quote for the Goods and/or Services.
17. HGE has an automatic extension of time for the provision of the
Goods or Services equal to the delay caused by the variation.
18. Unless otherwise agreed by the parties, HGE may in its
absolute discretion, issue an invoice to the Customer in any one
or more of the following ways:
(a) prior to commencing the provision of the Goods or
Services, for an amount equal to the Quote and additional
charges where HGE has not previously carried out work
for the Customer or where HGE chooses to do so;
(b) at the end of each week before the Order is completed,
HGE may issue one or more invoices for a proportion or
the whole of the amount of the Quote (the proportion to be
calculated at HGE’s discretion either for work done to that
point, work in the future or both) and require that
proportion of the Quote be paid in advance of any further
Goods or Services being provided; or
(c) upon completion of the provision of the Goods or Services
or any time thereafter, for an amount equal to the Quote
or the balance of the Quote outstanding, any additional
charges and any amount not previously invoiced, or if no
Quote was provided, for an amount representing HGE’s
charge for the work performed in completing the Order
and for any additional charges.
19. The amount payable in an invoice is as per the Quote and any
additional charges.
20. The Customer must pay an invoice issued by HGE to HGE
within 14 days of a valid tax invoice being issued to the
Customer.
21. If any invoice is due but unpaid, HGE may withhold the
provision of any further Goods or Services until overdue
amounts are paid in full.
22. HGE may in its complete discretion apply any payment received
from the Customer to any amount owing by the Customer to
HGE.

23. The Customer is not entitled to retain any money owing to HGE
notwithstanding any default or alleged default by HGE of these
terms of trade, including (but not limited to) the supply of
allegedly faulty or defective Goods, provision of Services to an
inadequate standard or a delay in the provision of Goods or
Services. Nothing in this clause affects the Customer’s rights for
any alleged failure of a guarantee under the Australian
Consumer Law.
24. The Customer is to pay HGE on demand interest at the rate of
10% per annum on all overdue amounts owed by the Customer
to HGE, calculated daily.
25. All costs and expenses associated with collecting overdue
amounts, including (but not limited to) legal fees and internal
costs and expenses of HGE, are to be paid by the Customer as
a debt due and payable under the terms of trade.
26. The Customer and HGE agree to comply with their obligations
in relation to Goods and Services Tax (“GST”) under the A New
Tax System (Goods and Services Tax) Act 1999 (Cth) and any
other applicable legislation governing GST.
Additional charges
27. HGE may require the Customer to pay additional charges in
respect of costs incurred by HGE as a result of reliance on
inadequate or incorrect information or material provided by the
Customer or information or material supplied later than required
by HGE in order for it to provide the Goods or Services within
the specified time frame (if any).
28. The imposition of additional charges may also occur as a result
of cancellation by the Customer of an Order where cancellation
results in loss of HGE, storage costs for Goods not collected
from HGE within 2 weeks of the date on which the Goods are
manufactured, fabricated, created or formed at the rate set out
in the Quote, photocopying, communication costs, couriers,
packing and handling, Government or council taxes or charges,
additional work required by the Customer or any other
occurrence which causes HGE to incur costs in respect of the
Customer’s Order additional to the quoted cost.
Acceptance of Goods
29. If the Customer fails to advise HGE in writing of any fault in
Goods or failure of Goods to accord with the Customer’s Order
within 48 hours of delivery, the Customer is deemed to have
accepted the Goods and to have accepted that the Goods are
not faulty and accord with the Customer’s Order. Nothing in this
clause affects the Customer’s rights for any alleged failure of a
guarantee under the Australian Consumer Law.
Title and risk
30. Risk in Goods passes to the Customer immediately upon
delivery.
31. Property in Goods supplied to the Customer pursuant to these
terms of trade does not pass to the Customer until all money
(including money owing in respect of other transactions
between HGE and the Customer) due and payable to HGE by
the Customer have been fully paid.
32. Where Goods are supplied by HGE to the Customer without
payment in full of all moneys payable in respect of the Goods
and any Services provided by HGE in respect of those Goods,
the Customer:

(a) is a bailee of the Goods until property in them passes to
the Customer;
(b) irrevocably appoints HGE its attorney to do all acts and
things necessary to ensure the retention of title to Goods
including the registration of any security interest in favour
of HGE with respect to the Goods under applicable law;
(c) must be able upon demand by HGE to separate and
identify as belonging to HGE Goods supplied by HGE
from other Goods which are held by the Customer;
(d) must not allow any person to have or acquire any security
interest in the Goods;
(e) agrees that HGE may repossess the Goods if payment is
not made within 14 days (or such longer time as HGE
may, in its complete discretion, approve in writing) of the
supply of the Goods; and
(f) the Customer grants an irrevocable licence to HGE or its
agent to enter the Customer’s premises in order to
recover possession of Goods pursuant to this clause. The
Customer indemnifies HGE in respect of any damage to
property or personal injury which occurs as a result of
HGE entering the Customer’s premises.
33. Where Goods are supplied by HGE to the Customer without
payment in full of all moneys payable in respect of the Goods
and any Services provided by HGE in respect of those Goods,
and the Customer makes a new object from the Goods, whether
finished or not, or the Customer mixes the Goods with other
Goods or the Goods become part of other Goods (“new
Goods”), the Customer agrees with HGE that the ownership of
the new Goods immediately passes to HGE. The Customer will
hold the new Goods on trust for HGE until payment of all sums
owing to HGE whether under these terms of trade or any other
contract have been made and HGE may require the Customer
to store the new Goods in a manner that clearly shows the
ownership of HGE.
34. For the avoidance of doubt, under clause 33, the ownership of
the new Goods passes to HGE at the beginning of the operation
or event by which the Goods are converted into, are mixed with
or become part of other Goods.
35. Notwithstanding clause 32 the Customer may transfer, sell or
dispose of Goods, including new Goods, to a third party in the
ordinary course of business provided that:
(a) where the Customer is paid by a third party in respect of
Goods including new Goods, the Customer holds the
whole of the proceeds of sale less any GST on trust for
HGE — in a separate account — until all amounts owned
by the Customer to HGE have been paid; or
(b) where the Customer is not paid by a third party, the
Customer agrees to assign all of its rights against the third
party to HGE upon HGE giving the Customer notice in
writing to that effect and for the purpose of giving effect to
that assignment the Customer irrevocably appoints HGE
as its attorney.
36. Where Goods are supplied by HGE to the Customer without
payment in full of all moneys payable in respect of the Goods
and any Services provided by HGE in respect of those Goods,
the Customer acknowledge that HGE has a right to register and

 

perfect a personal property security interest. The Customer
agrees to sign any documents and provide all assistance and
information to HGE required to facilitate the registration and
maintenance of such a personal property security interest under
PPS Law.
37. The Customer acknowledges and agrees that the suppler may:
(a) register its interest in any Goods supplied to the Customer
but not paid in full under the Personal Property Securities
Act 2009 (Cth); and
(b) give notice to the Customer requiring the Customer to do
anything (including amending these terms of trade or
execute any new terms and conditions) that in HGE’s
opinion is necessary, to the maximum possible extent, to
enable or that would enable HGE’s security position to be
improved without adversely affecting the Customer. The
Customer must comply with the requirements of that
notice within the time specified in the notice. If, having
completed everything reasonably practicable as required
under this clause, in HGE’s opinion HGE’s security
position or obligations under or in connection with these
terms of trade have been or will be materially adversely
affected, HGE may by further notice to the Customer
cancel these terms of trade, in which case the Customer
must pay to HGE any money owed to HGE by the
Customer immediately.
38A. The Customer undertakes to ensure that HGE’s security
position, rights and obligations are not adversely affected by the
Personal Property Securities Act 2009 (Cth).
39. The Customer warrants that it owns all intellectual property
rights pertaining to its Order for Goods or Services or has a
licence to authorise HGE to reproduce or use all copyright
works or other materials the subject of intellectual property
rights supplied by the Customer to HGE for the purposes of the
Order. Further, the Customer indemnifies and agrees to keep
indemnified HGE against all losses incurred by HGE in relation
to or in any way directly or indirectly connected with any breach
of any other intellectual property rights in relation to any
material supplied by the Customer.
40. Unless specifically agreed in writing between HGE and the
Customer, all intellectual property rights in any works created by
HGE on behalf of the Customer vest in and remain the property
of HGE.
41. Subject to payment of all invoices due in respect of the Goods
or Services, HGE grants to the Customer a perpetual, non-
exclusive licence to use the works created or produced by HGE
in connection with the provision of Goods or Services under
these terms of trade for the purposes contemplated by the
Order.
Agency and assignment
42. The Customer agrees that HGE may at any time appoint or
engage an agent to perform an obligation of HGE arising out of
or pursuant to these terms of trade.
43. HGE has the right to assign and transfer to any person all or
any of its title, estate, interest, benefit, rights, duties and
obligations arising in, under or from these terms of trade
provided that the assignee agrees to assume any duties and

obligations of HGE owed to the Customer under these terms of
trade.
44. The Customer is not to assign, or purport to assign, any of its
obligations or rights under these Terms of trade without the
prior written consent of HGE.
Default by Customer
45. Each of the following occurrences constitutes an event of
default:
(a) the Customer breaches or is alleged to have breached
these terms of trade for any reason (including, but not
limited to, defaulting on any payment due under these
terms of trade) and fails to remedy that breach within 14
days of being given notice by HGE to do so;
(b) the Customer, being a natural person, commits an act of
bankruptcy;
(c) the Customer, being a corporation, is subject to:
(i) a petition being presented, an Order being made
or a meeting being called to consider a resolution
for the Customer to be wound up, deregistered or
dissolved;
(ii) a receiver, receiver and manager or an
administrator under Pt 5.3A of the Corporations
Act 2001 (Cth) being appointed to all or any part
of the Customer’s property and undertaking;
(iii) the entering of a scheme of arrangement (other
than for the purpose of restructuring); and
(iv) any assignment for the benefit of creditors;
(d) the Customer purports to assign its rights under these
terms of trade without HGE’s prior written consent; and
(e) the Customer ceases or threatens to cease conduct of its
business in the normal manner.
46. Where an event of default occurs, except where payment in full
has been received by HGE, HGE may:
(a) terminate these terms of trade;
(b) terminate any or all orders and credit arrangements (if
any) with the Customer;
(c) refuse to deliver Goods or provide further Services;
(d) pursuant to clause 32, repossess and re-sell any Goods
delivered to the Customer, the payment for which has not
been received; or
(e) retain (where applicable) all money paid on account of
Goods or Services or otherwise.
47. In addition to any action permitted to be taken by HGE under
clause 46, on the occurrence of an event of default all invoices
will become immediately due and payable.
Termination
48. In addition to the express rights of termination provided in these
terms of trade, a party may terminate these terms of trade by
giving 30 days written notice to the other party.
Exclusions and limitation of liability
49. The Customer expressly agrees that use of the Goods and
Services is at the Customer’s risk. To the full extent allowed by
law, HGE’s liability for breach of any term implied into these
terms of trade by any law is excluded.
50. All information, specifications and samples provided by HGE in
relation to the Goods or Services are approximations only and,

 

subject to any guarantees under the Australian Consumer Law,
small deviations or slight variations from them which do not
substantially affect the Customer’s use of the Goods or
Services will not entitle the Customer to reject the Goods upon
delivery, or to make any claim in respect of them.
51. HGE gives no warranty in relation to the Services provided or
supplied. Under no circumstances is HGE or any of its suppliers
liable or responsible in any way to the Customer or any other
person for any loss, damages, costs, expenses or other claims
(including consequential damages and loss of profits or loss of
revenues), as a result, direct or indirect of any defect, deficiency
or discrepancy in the Goods or Services including in their form,
content and timeliness of deliveries, failure of performance,
error, omission, defect, including, without limitation, for and in
relation to any of the following:
– any Goods or Services supplied to the Customer;
– any delay in supply of the Goods or Services; or
– any failure to supply the Goods or Services.
52. Any advice, recommendation, information, assistance or service
given by HGE in relation to Goods and/or Services is given in
good faith and is believed to be accurate, appropriate and
reliable at the time it is given, but is provided without any
warranty or accuracy, appropriateness or reliability. HGE does
not accept any liability or responsibility for any loss suffered as
a result of the Customer’s reliance on such advice,
recommendation, information, assistance or service.
53. To the fullest extent permissible at law, HGE is not liable for any
direct, indirect, punitive, incidental, special, consequential
damages or any damages whatsoever including, without
limitation, damages for loss of use, data or profits, arising out of
or in any way connected with the provision of or failure to
provide Goods or Services, or otherwise arising out of the
provision of Goods or the Services, whether based on terms of
trade, negligence, strict liability or otherwise, even if HGE has
been advised of the possibility of damages.
54. The Customer acknowledges that unless specifically stated, the
Goods or Services are not for personal, domestic or household
purposes.
55. The Australian Consumer Law may give to the Customer
certain guarantees. Where liability for breach of any such
guarantee can be limited, HGE’s liability (if any) arising from
any breach of those guarantees is limited with respect to the
supply of Goods, to the replacement or repair of the Goods or
the costs of resupply or replacement of the Goods or with
respect to Services to the supply of Services again or cost of re-
supplying the Services again.

Indemnity
56. The Customer indemnifies and keeps indemnified HGE, its
servants and agents in respect of any claim or demand made or
action commenced by any person (including, but not limited to,
the Customer) against HGE or, for which HGE is liable, in
connection with any loss arising from or incidental to the
provision of Goods or Services, any Order or the subject matter
of these terms of trade including, but not limited to any legal
costs incurred by HGE in relation to meeting any claim or

demand or any party/party legal casts for which HGE is liable in
connection with any such claim or demand. This provision
remains in force after the termination of these terms of trade.
Force majeure
57. If circumstances beyond HGE’s control prevent or hinder its
provision of the Goods or Services, HGE is free from any
obligation to provide the Goods or Services while those
circumstances continue. HGE may elect to terminate this
agreement or keep the agreement on foot until such
circumstances have ceased.
58. Circumstances beyond HGE’s control include, but are not
limited to, unavailability of materials or components, strikes,
lockouts, riots, natural disasters, pandemic, fire, war, acts of
God, Government decrees, proclamations or orders, transport
difficulties and failures or malfunctions of computers or other
information technology systems.
Dispute resolution
59. If a dispute arises between the Customer and HGE, the
following procedure applies:
(a) A party may give another party a notice of the dispute and
the dispute must be dealt with in accordance with the
procedure set out in this clause.
(b) A party must not commence legal proceedings (except
proceedings seeking interlocutory relief) in respect of a
dispute unless the dispute has been referred for resolution
in accordance with this clause.
(c) A party must not oppose any application for a stay of any
legal proceedings that may be issued in respect of a
dispute pending the completion or termination of the
procedure set out in this clause.
60. If a dispute is notified, the dispute must immediately be referred
to the parties’ respective senior management. Those
representatives must endeavour to resolve the dispute as soon
as possible and in any event within 5 business days (or other
period as agreed).
61. Unless otherwise agreed by the parties, any dispute that cannot
be settled by negotiation between the parties or their
representatives the parties expressly agree to endeavour to
settle the dispute by mediation administered by the Australian
Commercial Disputes Centre (ACDC) before having recourse to
arbitration or litigation. The mediation must be conducted in
accordance with the ACDC Guidelines for Commercial
Mediation which are operating at the time the matter is referred
to ACDC. The guidelines set out the procedures to be adopted,
the process of selection of the mediator and the costs involved.
The terms of the guidelines are incorporated into these Terms
of trade. This clause survives termination of these terms of
trade.
62. Notwithstanding the existence of a dispute (including the
referral of the dispute to mediation), each party must continue to
perform its obligations under these terms of trade.
63. The parties must hold confidential, unless otherwise required by
law or at the direction of a court of competent jurisdiction, all
information relating to the subject matter of the dispute that is
disclosed during or for the purposes of dispute resolution. The
parties acknowledge that the purpose of any exchange of

information or documents or the making of any offer of
settlement pursuant to this procedure is to attempt to settle the
dispute between the parties. No party may use any information
or documents obtained through the dispute resolution process
for any purpose other than an attempt to settle the dispute
between the parties.
Other matters
64. These terms of trade are governed by the laws of the state
where HGE’s registered office is situated and each party
irrevocably submits to the non-exclusive jurisdiction of the
courts of such state.
65. These terms of trade and any quotes and written variations
agreed to in writing by HGE represent the whole agreement
between the parties relating to the subject matter of these
terms.
66. These terms of trade supersede all oral and written negotiations
and communications by and on behalf of either of the parties.
67. In entering into these terms of trade, the Customer has not
relied on any warranty, representation or statement, whether
oral or written, made by HGE or any of its employees or agents
relating to or in connection with the subject matter of these
terms of trade.
68. If any provision of these terms of trade at any time is or
becomes void, voidable or unenforceable, the remaining
provisions will continue to have full force and effect.
69. A party’s failure or delay to exercise a power or right does not
operate as a waiver of that power or right.
70. A notice or other communication required or permitted to be
given by one party to another must be in writing to the address
shown on a Quote (or as varied pursuant to this clause) and
delivered personally, sent by pre-paid mail to the address of the
addressee specified in the relevant Quote; sent by facsimile
transmission to the facsimile number of the addressee specified
in the relevant Quote, with acknowledgment of receipt from the
facsimile machine of the addressee or sent by e-mail to the e-
mail address of the addressee specified in the relevant Quote with
acknowledgement of delivery.
71. A notice or other communication is taken to have been given
(unless otherwise proved) if mailed, on the second business
day after posting; or if sent by facsimile or e-mail before 4pm
one business day at the place of receipt, on the day it is sent
and otherwise on the next business day at the place of receipt.
72. A party may only change its postal or email address or fax
number for service by giving notice of that change in writing to
the other party.
Interpretation
73. In these terms of trade:
Additional charge means:
(a) fees or charges for additional work performed at the
Customer’s request or reasonably required as a result of
the Customer’s conduct, calculated in accordance with
HGE’s then current prices; and/or
(b) expenses incurred by HGE, at the Customer’s request or
reasonably required as a result of the Customer’s
conduct.

Business day means a day that is not a Saturday, Sunday or
public holiday in the place where the Services are principally
being carried out or the Goods provided.
Customer means the person identified on a Quote or Order as
the Customer and includes the Customer’s agents and permitted
assigns.
Goods means any Goods supplied by HGE including those
supplied in the course of providing Services.
HGE means High Ground Electrical the supplier of Goods or
Services on the Quote and includes HGE’s agents and permitted
assigns.
Intellectual property rights means intellectual property rights at
any time protected by statute or common law, including copyright,
trade marks, patents and registered designs.
Loss includes, but is not limited to, costs (including, but not
limited to, party to party legal costs and HGE’s legal costs),
expenses, lost profits, award of damages, personal injury and
property damage.
Order means a purchase Order for Goods or Services placed by
a Customer in response to a Quote and as varied in writing from
time to time by the parties.
PPS Law means:
(a) the Personal Property Security Act 2009 (Cth) (PPS Act)
and any regulation made at any time under the PPS Act
(each as amended from time to time); and
(b) any amendment made at any time to any other legislation
as a consequence of a PPS Law.
Quote means a written description of the Goods or Services to be
provided, an estimate of HGE’s charges for the performance of
the required work and an estimate of the time frame for the
performance of the work.
Services means the Services to be provided by HGE to the
Customer in accordance with a Quote and these terms of trade.
74. In these terms of trade, unless the context otherwise requires:
(a) a reference to writing includes email and other
communication established through HGE’s website (if
any);
(b) the singular includes the plural and vice versa;
(c) a reference to a clause is a reference to a clause of these
terms of trade;
(d) a reference to a party to these terms of trade or any other
document or arrangement includes that party’s executors,
administrators, successors and permitted assigns;
(e) where an expression is defined, another part of speech or
grammatical form of that expression has a corresponding
meaning;
(f) headings are for ease of reference only and do not affect
the meaning or interpretation of these terms of trade;
(g) if the date on which any act, matter or thing is to be done
falls on a day which is not a business day, that act, matter
or thing:
(i) if it involves a payment other than a payment
which is due on demand must be done on the
preceding business day; and
(ii) in all other cases, must be done on the next
business day.