In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act;
“Agreement” means this agreement for the provision of the Goods by FD to the Customer;
“Anticipated Delivery Date” means the anticipated date for delivery of the Goods as specified in the Quotation;
“consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if the Customer is a consumer under the Agreement;
“Customer” means the person/s acquiring the Goods or Services from FD;
“Design Parameters” means the design parameters specified in the Quotation;
“FD” means Fluid Dynamics Pty. Ltd. ABN 77 013 600 864
“Force Majeure” means events beyond FD’s reasonable control including but not limited to acts or omissions attributable to the Customer or its other contractors, pandemics, acts of war or terrorism, insurrection, sabotage, civil disobedience, requisition, import or export restrictions, embargoes, industrial disputes, strikes, lockouts, delays in transport or customs clearance, fires, explosion, accident, breakdown, difficulties in obtaining raw materials, labour, fuel, parts or machinery and any acts of God or government.
“Goods” means the goods specified in the Quotation;
“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
“Intellectual Property” means all copyright, trademarks, designs, specifications, confidential information (whether registrable or not) owned or licensed by FD or its sub-suppliers in respect of the Goods or their operation, location or design;
“Maintenance Contract” means a servicing and maintenance contract signed between FD and the Customer;
“Payment Terms” means the payment terms specified in the Quotation;
“PPSA” means the Personal Property Securities Act 2009 as amended;
“Price” means the price for the Goods specified in the Quotation;
“Quotation” means the quotation provided by FD to the Customer concerning the proposed supply of the Goods or Services;
“Services” means services specified in the Quotation;
“Site” means the site at which the Goods are stored or installed.
“Site Requirements” means any preliminary works which must be completed at the Site in readiness for the provision of the Goods and Services, as specified in Item 7 of the Schedule; and
“Terms” means these Terms and Conditions of Sale.
2. BASIS OF AGREEMENT
2.1 Unless otherwise agreed by FD in writing, these Terms apply exclusively to the Agreement and cannot be varied or replaced by any other terms, including the Customer’s terms and conditions of purchase (if any).
2.2 This Agreement may include additional terms specified in FD’s Quotation. The specific terms of the Quotation will prevail over these Terms to the extent of any inconsistency.
2.3 The Customer must provide FD with its specific requirements, if any, in relation to the Goods or Services.
Where the Customer acts as trustee of a Trust, the Customer will be bound both personally and in its capacity as trustee.
4.1 The Customer must pay the Price for the Goods and Services.
4.2 Unless otherwise agreed in writing, the Price:
(a) excludes taxes, duties or imposts on or in relation to the Goods or Services, including (without limitation) GST or other broad-based consumption tax or value-added tax;
(b) excludes the cost of freight, delivery, insurance and other charges arising from the point of despatch of the Goods from FD to the Site; and
(c) excludes the cost of transport and accommodation for any of FD’s personnel required in connection with the provision of any Services.
4.3 In addition to payment of the Price, the Customer must pay to FD any amounts specified in clause 4.2.
4.4 Unless otherwise agreed in writing, the Price excludes the costs payable by the Customer to third party providers, such as the Customer’s nominated electrician, engineer or installer.
5. PRICE VARIATION
5.1 If the Customer requests any variation to the Agreement, FD may, in its discretion:
(a) increase the Price to account for the variation, or
(b) provide a revised Quotation for the Goods or Services.
(a) there is any change in the costs incurred by FD in relation to the Goods or Services (including but not limited to changes in personnel or materials costs); or
(b) the Customer fails to give FD adequate instructions, or the Customer delays in the provision of instructions; or
(c) there is any change required to the Design Parameters based on the layout of the Site, then FD may vary the Price to take account of any such change, by notifying the Customer.
5.3 Prices are quoted and payable in the currency specified in the Quotation.
5.4 If fluctuation in the exchange rate between the currency of a foreign country from which the Goods or parts thereof are being sourced and the Australian Dollar results in a price increase of more than 10% between the time of payment of the first deposit and the time of payment of the balance, then FD may alter the Price and the Customer must pay the difference.
6.1 Unless otherwise agreed in writing, payment for the Goods and Services must be made by the Customer to FD in full, and without deduction or set-off, at the times and in the amounts specified in the Payment Terms.
6.2 Time for payment is of the essence.
6.3 Payment must be made by cash, cheque, bank cheque, credit card or EFT, although payment by cheque will not be deemed to be made until the proceeds of the cheque have cleared.
6.4 The Customer must pay an administration fee of 2% of the payment amount where payment is made by credit card.
6.5 Notwithstanding the provisions of this clause 6, FD reserves the right to require payment in full immediately upon delivery of the Goods or Services.
7.1 If the Customer fails to comply with the Payment Terms, then all money which would become payable by the Customer to FD at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and FD may, without prejudice to any of its other accrued or contingent rights:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 2% for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify FD from, all costs and expenses (including without limitation all legal costs and expenses) incurred by FD resulting from the default, or in taking action to enforce compliance with the Agreement, or to recover any goods, or to recover any sum due;
(c) cease or suspend supply of any further Goods or Services to the Customer; and
(d) by written notice to the Customer, terminate the Agreement.
7.2 Clauses 7.1(c) and (d) may also be relied upon, at FD’s option:
(a) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator or similar functionary appointed in respect of its assets, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
8. PASSING OF PROPERTY
8.1 Until FD receives full payment in cleared funds for all Goods and Services supplied by it to the Customer, as well as all other amounts owing to FD by the Customer:
(a) title and property in the Goods remains vested in FD and does not pass to the Customer;
(b) the Customer must hold the Goods as fiduciary bailee and agent for FD;
(c) to the extent that it is possible to do so, the Customer must keep the Goods separate from its own goods and maintain FD’s labelling and packaging;
(d) the Customer is not permitted to on-sell the Goods; and
(e) in addition to its rights under the PPSA, FD may without notice, enter the Site or any premises where it suspects the Goods are and dismantle, detach and remove them (notwithstanding that the Goods may have been attached to other goods not the property of FD) and for this purpose the Customer irrevocably licences FD to enter such premises and also indemnifies FD from and against all costs, claims, demands or actions by any party arising from such action.
9. PERSONAL PROPERTY SECURITIES ACT
9.1 Notwithstanding the foregoing or anything to the contrary contained in these Terms, the parties agree that the PPSA applies to these Terms.
9.2 For the purposes of the PPSA:
(a) terms used in this clause 9 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Terms are a security agreement;
(c) FD has a security interest in all present and future goods supplied by FD to the Customer and the proceeds of the Goods;
(d) FD has a Purchase Money Security Interest that secures the Customer’s obligation to pay in full the debt owed by the Customer to FD in relation to the Goods;
(e) the security interest is a continuing interest irrespective of whether there may be monies owing or obligations owing by the Customer at a particular time; and
(f) the Customer must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by FD on the Personal Property Securities Register.
9.3 The security interest arising under this clause attaches when the Goods are collected or despatched from FD’s premises. The parties have not agreed that any security interest arising under this clause 9 attaches at any later time.
9.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
9.5 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on FD will only apply to the extent that they are mandatory or FD agrees to their application; and
(b) where FD has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
9.6 The Customer must immediately upon FD’s request:
(a) do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
(b) procure from any person considered by FD to be relevant to its security position such agreements and waivers (including as equivalent to those above) as FD may at any time require.
9.7 FD may allocate amounts received from the Customer in any manner FD determines, including in any manner required to preserve any Purchase Money Security Interest that it has in Goods supplied by FD.
10. RISK & INSURANCE
10.1 Unless otherwise agreed in writing, the risk in the Goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the Goods being despatched ex works.
10.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the Goods sold or Services supplied by FD unless recoverable from FD on the failure of any statutory guarantee under the ACL.
11.1 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by FD in relation to the Goods or Services or their use or application; and
(b) it has not made known to FD, either expressly or by implication, the purpose for which it requires the Goods or Services and it has the sole responsibility of satisfying itself that the Goods or Services are suitable for the Customer’s use.
12. CUSTOMERS OBLIGATIONS
12.1 The Customer must ensure the accuracy of any specifications and requirements in respect of the Goods and Services and give FD any necessary information relating to the Goods or Services within a reasonable time.
12.2 The Customer must:
(a) make provision for any Site Requirements specified;
(b) make the Site available to FD by the Anticipated Delivery Date to enable delivery of the Goods;
(c) allow FD its servants and agents unencumbered and uninterrupted access to the Goods at all reasonable times to deliver, install, dismantle, detach, remove, inspect, test, adjust, maintain, repair or replace them; and
(d) provide FD with clean, safe and proper access to and at the Site.
12.3 The Customer acknowledges that in order to provide the Services, FD may need to access the Site prior to delivery to assess it for delivery and other purposes.
13. DESIGN PARAMETERS
13.1 FD agrees to provide the Goods substantially in accordance with the Design Parameters.
13.2 The Customer acknowledges:
(a) the accuracy of the input conditions supplied to FD by the Customer and comprised in the Design Parameters;
(b) that the output power specified in the Design Parameters has been calculated on the basis of the input conditions supplied by the Customer;
(c) FD provides no warranty, representation or guarantee as to the output power achievable; and
(d) the Goods may perform within the acceptable industry tolerances / variances specified in the Design Parameters.
14.1 Unless otherwise agreed, the Customer will collect the Goods itself from FD’s premises and must arrange, at its own cost, for the collection of the Goods within 7 days of notification that the Goods are ready. If the Customer does not collect the Goods within this time, then the Customer is deemed to have taken delivery of the Goods from such date and is liable for storage charges payable weekly on demand.
14.2 Subject always to clause 10 hereof, in the event that FD agrees to arrange delivery to the Site it will do so at the Customer’s cost and risk and the Customer must provide reasonable and proper access to the Site for the purpose of delivery. The Customer indemnifies FD against any loss or damage suffered by FD, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and FD has not used due care and skill.
14.3 FD may make part delivery of Goods or provision of Services. FD may invoice the Customer for the Goods or Services delivered.
14.4 Any period or date for delivery of Goods or Services stated by FD is an estimate only and is not a contractual commitment.
14.5 FD will use its reasonable endeavours to meet any estimated dates for delivery of the Goods and Services but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
14.6 If FD cannot complete the Services by any estimated date, it will complete the Services within a reasonable time.
15. SERVICE & MAINTENANCE
15.1 If the Customer has signed a Maintenance Contract with FD, FD will provide service and maintenance work and technical support for the Goods at the times and in the manner specified in that Maintenance Contract.
15.2 If the Customer has not signed a Maintenance Contract, any servicing and maintenance of the Goods requested by the Customer from time to time will be provided in accordance with FD’s usual service and maintenance charges.
15.3 Any servicing or maintenance of the Goods requested by the Customer will be provided in accordance with FD’s usual service and maintenance charges.
15.4 Unless otherwise agreed, all repairs, service and maintenance work will be carried out in FD’s factory during normal business hours. If the Customer requires the repair, service or maintenance work to be carried out at a site outside the factory , after hours, on weekends or public holidays, additional costs will be incurred and are payable by the Customer.
15.5 If the Goods are defective and under warranty the Customer must inform FD immediately of any malfunction in the Goods and include a description of the malfunction. The Customer must undertake reasonable steps in line with any instructions from FD aimed at remedying the error or identifying the cause of the malfunction. FD reserves the right to replace the Goods or defective parts of the Goods with parts and components of similar quality, grade and composition where an identical part or component is not available.
15.6 Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the Goods.
15.7 In the event the Customer claims the Goods are in any way defective and under any warranty and FD inspects, repairs, replaces, freights or howsoever incurs expense by reason of such claim and no defect is found, is found but it is not the fault of FD or it is otherwise not covered by any warranty, the Customer shall be liable for all reasonable costs and expenses howsoever incurred by FD in connection with such claim whether incurred at the Purchaser’s request or otherwise.
15.8 Any repairs, alterations or other work carried out to the Goods under any warranty by a person other than FD, or a representative of FD authorised in writing to specifically carry out the alteration or work, shall invalidate any and all warranties.
15.9 The Customer acknowledges that any goods brought to FD for cleaning, testing or repair are in need of cleaning, testing or repair and that, whilst FD will use its best endeavours in an attempt to improve the cleanliness or function of the goods and to avoid damaging the goods, FD gives no warranty whatsoever that such attempt will improve the performance of or clean the goods and will not be liable if the goods are damaged in any way.
16.1 Except as the Terms specifically state, or as contained in any express warranty provided in relation to the Goods or Services, this Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, or any contractual remedy for their failure.
16.2 If the Customer is a consumer, nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against FD for failure of a statutory guarantee under the ACL.
16.3 If clause 16.2 does not apply, then other than as stated in the Terms or any written warranty statement, FD is not liable to the Customer in any way arising under or in connection with the sale, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
16.4 FD is not liable for:
(a) any indirect or consequential, special, punitive, exemplary, indirect or incidental losses, damages or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of revenue, turnover, profits, business or goodwill or any liability to any other party, other than if the Customer is a consumer, then to the extent the loss was reasonably foreseeable; or
(b) any loss or damage suffered by the Customer in relation to any services provided by third parties including the Customer’s nominated electrician, engineer or installer.
16.5 The Customer is responsible to and acknowledges and agrees that FD shall have no responsibility or liability to ensure that the designs and specifications for the Goods or Services submitted by the Customer to FD are correct and accurate; or to satisfy itself that any goods made to those designs and specifications will meet the Customer’s requirements or are fit for the purpose for which they are intended.
16.6 Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of Services which cannot be so excluded, restricted or modified.
16.7 Except to the extent an exclusion or limitation of FD’s liability is prohibited by law (in which circumstance FD’s liability shall be limited only to the extent permitted by the applicable law), FD’s aggregate liability to the Customer under or in connection with the Agreement, including any liability arising out of or relating to the performance and/or breach and/or termination of the Agreement, shall not exceed the sum of the payments received for the Goods from the Customer or the Price, whichever is less.
17. VARIATION & CANCELLATION
17.1 If FD is unable to deliver or provide the Goods or Services, then it may, by written notice to the Customer and without any liability to the Customer:
(a) make changes to the Goods or Services supplied, provided that the end performance of the Goods or Services is not materially prejudiced; or
(b) cancel the Customer’s order (even if it has already been accepted).
17.2 No purported cancellation or suspension of an order by the Customer is binding on FD.
17.3 Notwithstanding clause 17.2, if FD accepts the Customer’s cancellation of an order, FD may, in its discretion:
(a) charge the Customer for the cost of any items ordered or made prior to the cancellation of the order; or
(b) retain any deposit moneys paid under the Payment Terms.
18.1 Subject to clause 18.4, FD will not be liable for any shortages, damage or non-compliance with the Design Parameters unless:
(a) the Customer notifies FD with full details within 7 days of delivery specifying the defect or non-compliance; and
(b) FD is given the opportunity to inspect the Goods and investigate the complaint before any further dealing.
18.2 If the Customer fails to give the notice as required in clause 18.1, it is deemed to have accepted the Goods and will be bound to pay for them.
18.3 If the Goods are taken into use by the Customer the Goods shall be deemed accepted. The Customer may not refuse acceptance of the Goods or any portion thereof due to the existence of defects or non-conformities that do not adversely affect the safe and efficient operation of the Goods or where the commencement of any agreed acceptance tests are delayed by more than two months for reasons not solely attributable to FD.
18.4 Where FD accepts any claim for shortages, damage or non-compliance with the Design Parameters, FD may, at its option, repair or replace the Goods, re-supply the Services, or refund the price of the Goods or Services.
18.5 Subject to clause 18.7, FD will not, under any circumstances, accept goods for return that:
(a) have not been used, stored, installed or operated in accordance with good practice or any legislative requirements;
(b) have been specifically produced, imported, exported or acquired to fulfil any agreement; or
(c) have been altered or damaged in any way.
18.6 Subject to clause 18.7, the Customer must obtain FD’s prior written approval for the return of the Goods and pay all freight charges associated with their return.
18.7 If the Customer is a consumer, nothing in this clause 18 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
19. INTELLECTUAL PROPERTY
19.1 The Customer acknowledges that it has no proprietary right or interest in the Intellectual Property.
19.2 The Customer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or any part thereof or anything similar to it or aid or abet anyone else to do so.
19.3 Unless otherwise specified, any Intellectual Property provided to the Customer by FD remains FD’s exclusive property and must be returned to FD on demand and must not be copied or communicated to any third party without FD’s express written consent.
19.4 The Customer must not at any time (and must not direct any other party to) create, sell, manufacture or process any goods or Services using or taking advantage of the Intellectual Property.
20. FORCE MAJEURE
20.1 FD shall be excused from any obligation arising under the Agreement to the extent of delays in completion caused by Force Majeure and FD shall be entitled to its reasonable costs and expenses incurred as a result of any such circumstances and a corresponding extension of time.
20.2 If an event of Force Majeure occurs and causes delays exceeding three months, either party shall be entitled to terminate the Agreement by written notice to the other party. If the Agreement is terminated in accordance with this provision FD shall be entitled to all payments made or then due and all other costs and expenses incurred in performing the Agreement and/or resulting from termination including the cost of any ordered goods or Services FD is required to pay.
21. DISPUTE RESOLUTION
21.1 If there is a dispute between the Parties arising out of or in connection with this Contract, then within five (5) Business Days of a Party notifying the other Party of that dispute, senior representatives from each Party must meet and use reasonable endeavours to resolve the dispute by negotiation.
21.2 If the dispute between the Parties arising out of or in connection with this Contract is not resolved within five (5) Business Days of notification of the dispute under clause either Party may by written notice refer the dispute to mediation administered a mutually agreed mediator or failing agreement a mediator appointed by the President of the Law Institute of Victoria.
21.3 The Parties must use all reasonable endeavours to resolve the dispute at mediation.
21.4 If the dispute is not resolved by mediation within sixty (60) Business Days of notification of the dispute under clause 11.1 or the Parties agree to discontinue mediation, either Party may terminate the dispute resolution process undertaken to date and commence court proceedings in relation to the dispute.
21.5 The Supplier must deliver a copy of any Notice or other documentation associated with the referral of a dispute to mediation or the commencement of court proceedings by Notice addressed to the using the address of the Purchaser specified in the Purchase Order.
21.6 Nothing in this clause 11 prevents a Party seeking urgent injunctive relief from a court.
21.7 Despite the existence of a dispute, the Parties must continue to perform their respective obligations under this Contract except where the Contract has been terminated.
22.1 The law of Victoria from time to time governs the Terms and the Customer submits to the jurisdiction of the Courts of that State or the Federal Court of Australia sitting in Melbourne.
22.2 FD’s failure to enforce any of these Terms shall not be construed as a waiver of any of FD’s rights.
22.3 If any Term is unenforceable it must be read down so as to be enforceable or, if it cannot be read down, the term must be severed from the Terms without affecting the enforceability of the remaining terms.
22.4 A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed to be received on confirmation of successful transmission.
22.5 The parties may agree for FD to provide additional goods or Services from time to time. Any varied or additional goods or Services will be provided on the Terms and such other terms as may be agreed.
23. SPECIAL CONDITIONS
23.1 Any special conditions appearing in the Quotation apply to and are incorporated into this Agreement. If there is any inconsistency between the terms of this Agreement and the Quotation, the Quotation will prevail to the extent of the inconsistency.
23.2 Where FD commences legal proceedings in any court or tribunal for recovery of payments due to it from the Customer under the Agreement then, in the event that the court or tribunal finds that the customer is indebted to FD for any sum, the Customer will indemnify and reimburse FD for all reasonable legal costs and out of pocket expenses incurred by FD in and arising out of such court or tribunal proceedings.
24.1 New products supplied by FD are warranted against defects in materials and workmanship for a period of twelve (12) months from the date of invoice.
24.2 No warranty applies to any products that have been repaired, tested or cleaned by FD.
24.3 Any warranty by FD will be void if the product supplied by FD has:
(a) become defective other than during normal use and service;
(b) been tampered with, opened, dismantled, otherwise interfered with, repaired or attempted to be repaired by any person other than FD or its authorized representative;
(c) been subjected to impact, abuse, misuse, incorrect mounting or installation;
(d) sustained any impact, corrosion or damage; or
(e) not been stored, installed, operated or maintained in a dry and corrosive free environment and in accordance with good practice and FD’s instructions.
24.4 Any warranty is strictly limited to the benefit of the person named on the invoice and only to new products manufactured or supplied by FD.
24.5 No warranty applies to any costs incurred by the purchaser by reason of the removal, shipment or re-installation of any product or any item provided by way of exchange.
24.6 To the extent permitted by law FD’s warranties set out in these terms are in lieu of any and all other warranties, either expressed or implied, and no other warranties are provided. FD shall have no liability to any person in respect of any products or service other than to the original purchaser of the product or service including but not limited to any executor, administrator, successor or assign of the original purchaser.
25. RETURN OF DEFECTIVE UNITS
After written consent has been provided by FD, all products alleged to be defective shall be returned to FD at the expense of the Purchaser.
26. ADJUSTMENT POLICY
FD shall, at its option, repair or replace any Product the subject of warranty which it determines in its absolute discretion to be defective and covered by this warranty.
27. LIABILITIES OF PURCHASER
Where any defect is found not to be the fault of FD or otherwise not covered by FD’s warranty, the Purchaser shall be liable for all costs and expenses incurred by FD in connection with the inspection, repair, replacement or freight of the product whether at the Purchaser’s request or otherwise.
28. LIMITATION OF LIABILITY
To the extent permitted by law, the liability of FD for any defects in any products shall be limited only to the repair or replacement of defective products as provided herein. FD shall have no other liability for any loss or damage of any kind including but not limited to any direct, indirect, consequential, special or exemplary loss or damage howsoever arising whether in contract, tort or otherwise arising from or in connection with the Products, the use of the products or any defects in its products.
If it is not possible to give effect to any provision of these terms then that provision is to be severed and the remainder of these terms will continue to have full force and effect.
Where FD commences legal proceedings in any court or tribunal for recovery of payments due to it from the customer in respect of goods sold and delivered or Services provided to the customer then in the event that the court or tribunal finds that the customer is indebted to FD for the sum claimed, the customer will indemnify and reimburse FD for all legal costs and expenses incurred by FD leading up to, in and arising out of such court or tribunal proceedings.