These Terms and Conditions of Sale shall apply to and form part of any contract for the supply of Goods by ChemCloud Pty Ltd t/a ChemCloud ACN 647 447 041 to the Buyer.
1.1 Legal and equitable title in and to the Goods will remain with the Seller and will not pass to the Buyer until such time when all amounts owing to Seller by the Buyer are received in full and cleared funds, on all accounts and under this Contract or any other contract (which payments are not to any extent subsequently claimed or clawed back by any person standing in the place of or representing the Buyer).
1.2 The risk in the Goods passes to the Buyer on delivery to the Buyer or into custody on the Buyer’s behalf, including but not limited to delivery to the Buyer’s agent or carrier, provided that if the Buyer fails to accept delivery or requests a delay in delivery, risk in the Goods will be borne by the Buyer from the time of such failure or request (as the case may be).
1.3 Until legal and equitable title in the Goods passes to the Buyer, the Buyer acknowledges and agrees that:
(a) the Buyer holds the Goods as bailee for the Seller and a fiduciary relationship exists between the Buyer and the Seller;
(b) the Goods will be stored separately so that they are readily identifiable as the property of the Seller;
(c) the Buyer will not dispose of the Goods except with the Seller’s prior written consent;
(d) if the Buyer sells, leases or otherwise deals with the Goods or products incorporating the Goods, the Buyer will hold the proceeds of any sale, lease or such dealing on trust for the Seller in a separate account (to the extent that such proceeds held on trust represent the total outstanding debt owed to the Seller on all accounts by the Buyer) and will, on request and as directed by the Seller, pay any such amounts in immediately available funds to the Seller;
(e) the Buyer warrants that the Seller has a Security Interest (for the purposes of the PPSA) in the Goods and any proceeds described in clause 1.3(d);
(f) the Security Interest arising under this clause 1.3 attaches to the Goods when the Buyer obtains possession of the Goods, and the parties confirm that they have not agreed that any Security Interest arising under this clause 1.3 attaches at any later time;
(g) the Buyer will not cause the Goods to lose their identifiable character or be intermingled with other goods, in any way, either by any process of its own or by a third party, except with the Seller’s prior written consent;
(h) the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer;
(i) the Buyer cannot claim any lien over the Goods;
(j) the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party or any encumbrance over the Goods, except with the Seller’s prior written consent;
(k) pending payment in full for all amounts owed by the Buyer to the Seller on all accounts, the Buyer must:
(i) subject to clause 2, not allow any person to have or acquire any Security Interest in the Goods;
(ii) insure the Goods for their full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business;
(iii) not remove, deface or obliterate any identifying mark or number on any of the Goods; and
(iv) not move the Goods from the Buyer’s premises;
(l) in addition to any rights the Seller may have under Chapter 4 of the PPSA, the Seller may, at any time, demand the return of the Goods and the Seller and its representatives will be entitled, without notice to the Buyer and without liability to the Buyer, to enter any premises occupied by the Buyer (or any other premises where the Buyer is holding the Goods) in order to search for and remove the Goods, and for this purpose the Buyer irrevocably licenses the Seller to enter such premises (including via the Seller’s agent) and indemnifies the Seller from and against all loss suffered or incurred by the Seller or its related bodies corporate as a result of exercising its rights under this clause (including, without limitation, all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against the Seller in connection with the exercise of its rights under this clause). The Buyer and its representatives will provide all reasonable assistance to the Seller and its representatives the purposes of enabling the Seller to exercise its rights under this clause. If there is any inconsistency between the Seller’s rights under this clause 1.3(l) and its rights under Chapter 4 of the PPSA, this clause 1.3(l) prevails. The Buyer agrees to reimburse the costs of the Seller in connection with any action taken by the Seller under or in connection with this clause 1.3(l); and
(m) the Buyer irrevocably appoints the Seller as the Buyer's true and lawful attorney and in the Buyer's name to do all such acts (including signing any documents) as the Seller in its discretion may require (but in no event will the Seller be obliged to do anything) in order for the Seller to retake possession and control of the Goods as contemplated under clause 1.3(l). The Buyer will ratify all such acts, matters and things as the Seller may perform or require in connection with any of the matters set out in clause 1.3(l).
1.4 The Seller’s rights under this clause 1 secure the Seller’s right to receive the price of the Goods and all other amounts owing to the Seller under any other contract.
2.1 If the Seller determines that a PPS Law applies, or will in the future apply, to any agreement that incorporates this Contract or the supply of any Goods, then the Buyer must, promptly upon request from the Seller:
(a) do anything (including obtaining consents, and making amendments to, completing or execution any documents) for the purposes of:
(i) ensuring that any Security Interest created under, or provided for by, this Contract:
(A) Attaches to the collateral that is intended to be covered by that Security Interest;
(B) is enforceable, perfected (including, where possible, by control in addition to registration), maintained and otherwise effective; and
(C) has the priority required by the Seller;
(ii) enabling the Seller, on and from the Registration Commencement Time, to apply for any registration or give any notification (including a Financing Statement or Financing Change Statement), in connection with the Security Interest so that the Security Interest has the priority the Seller requires (including a registration for the collateral class the Seller thinks fit), and the Buyer consents to any such registration or notification and agrees not to make an amendment demand; and
(iii) enabling the Seller to exercise any of its rights in connection with any Security Interest created under, or provided by, this Contract; and
(b) provide any information requested by the Seller in connection with this Contract to enable it to exercise any of its powers or perform its obligations under the PPS Law.
2.2 Except if section 275(7) of the PPSA applies, each of Seller and the Buyer agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.
2.3 Where the Goods supplied under the Contract are not used predominantly for personal, domestic, or household purposes, the Buyer agrees that, on and from the Registration Commencement Time:
(a) the Seller is under no obligation to dispose of or retain any secured property the Seller seizes within a reasonable time under section 125 of the PPSA;
(b) following a default, the Buyer has no rights to redeem the secured property under section 142 of the PPSA;
(c) the Buyer has no rights to reinstate this Contract following a default under section 143 of the PPSA; and
(d) despite the Buyer paying for particular Goods itemised in an invoice or order or otherwise in respect of amounts owing under or in connection with the Contract, any payments received by the Seller from the Buyer will be applied in the following order:
(i) first, to satisfy any obligations owed by the Buyer to the Seller which are unsecured, in the order in which the obligations were incurred;
(ii) second, to satisfy any obligations that are secured but which are not secured by a Purchase Money Security Interest, in the order in which those obligations were incurred; and
(iii) third, to satisfy any obligations that are secured by a Purchase Money Security Interest, in the order in which those obligations were incurred.
2.4 If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interest created under this Contract, the Buyer agrees that the following provisions of the PPSA will not apply:
(a) section 95 (notice of removal of accession), to the extent that it requires the Seller to give a notice to the Buyer;
(b) section 118 (enforcing security interests in accordance with land law decisions);
(c) section 121(4) (enforcement of liquid assets – notice to Grantor);
(d) section 125 (obligation to dispose of certain collateral);
(e) section 130 (notice of disposal), to the extent that it requires the Seller to give a notice to the Buyer;
(f) paragraph 132(3)(d) (contents of statement of account after disposal);
(g) subsection 132(4) (statement of account if no disposal);
(h) section 135 (notice of retention);
(i) section 142 (redemption of collateral); and
(j) section 143 (reinstatement of security agreement).
2.5 If the PPSA is amended after the date of this Contract to permit a grantor and a secured party to agree to not comply with or exclude other provisions of the PPSA, the Seller may notify the Buyer that any of these provisions is excluded, or that the Seller need not comply with any of these provisions, as notified to the Buyer by the Seller.
2.6 To the extent permitted by law, the Buyer waives the right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a Financing Statement or a Financing Change Statement relating to any Security Interest created under the Contract, and contracts out of its rights to receive any other notice or statement under any other provision of the PPSA. However, nothing in this clause prohibits the Seller from giving a notice under the PPSA or any other law.
2.7 The Buyer agrees to notify the Seller:
(a) at least 14 days before the Buyer does any of the following:
(i) if the Buyer does not have an ACN or ARBN, the Buyer changes its name; or
(ii) the Buyer becomes trustee of a trust with an ABN, or a partner in a partnership with an ABN, other than a trust or partnership referred to in this Contract; and
(b) if the Buyer has an ACN or ARBN (or is the trustee of a trust that has an ABN or is a partner in a partnership that has an ABN), as soon as possible after the Buyer becomes aware that the relevant number will change or cease to apply.
2.8 Anything that is required by the Seller to be done under this clause 2 will be done by the Buyer at its own expense. The Buyer agrees to reimburse the costs of the Seller in connection with any action taken by the Seller under or in connection with this clause 2.
3.1 An Order or an offer to purchase can be made by the Buyer in writing or verbally. An Order is accepted when the Buyer receives from the Seller an acknowledgement of the Order, the Seller appropriates the relevant Goods for delivery to the Buyer, the Seller issues an Invoice to the Buyer for the relevant Order, or the Seller delivers the relevant Goods to the Buyer or into custody on the Buyer’s behalf (including but not limited to delivery to the Buyer’s agent or carrier), whichever occurs first (Order Acceptance).
3.2 These Terms and Conditions apply to every Order, unless otherwise agreed in writing by the Seller. Acceptance of Goods by the Buyer is conclusive evidence that the Terms and Conditions apply and are binding on the Buyer.
3.3 The Seller may, in its sole and absolute discretion, accept or reject any Order or any variation or modification of an Order requested by the Buyer.
3.4 From time to time, the Seller may set minimum order quantities in respect of the Goods. If considered necessary by the Seller, including where the Seller is required to order special material or qualities for which a supplier of the Seller requests minimum order quantities, the Buyer may be requested to accept an increase of the minimum quantity the Seller requires to be ordered to fulfil the Order and, if so requested, the Buyer shall be obliged to accept and pay for such increase. The price for the additional product shall be determined according to the unit price for the products included in the Order.
3.5 The Seller may, in its sole and absolute discretion, accept or reject any Order cancellation request by the Buyer. If a cancellation request is accepted by the Seller, the Buyer will be liable for any direct loss or expense incurred by the Seller in respect of that Order (including, without limitation, payment for any Goods ordered by the Seller from its suppliers relating to that Order).
3.6 The Contract for the supply of Goods pursuant to an Order constitutes the entire agreement between the Seller and the Buyer with respect to that Order. The Contract:
(a) supersedes and excludes all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods; and
(b) overrides any quotes, invoices, accepted or modified Orders and the Buyer’s terms and conditions of purchase (if any), exchanged between the parties whether or not such documents expressly provide that they override this Contract.
3.7 If there is an inconsistency between any other terms agreed by the Buyer and the Seller in writing (including those documents referred to in clause 3.6(b)) and this Contract (including the Terms and Conditions), the terms of this Contract will prevail to the extent of any inconsistency.
4.1 The Seller will use reasonable endeavours to have the Goods delivered to the Buyer or its designated agent as agreed between the parties on the date agreed between the parties as the delivery date. The parties agree that time is not of the essence under this Contract.
4.2 The Seller will not be liable for any losses, costs, damages, expenses, claims, demands, actions, suits or proceedings (including, without limitation, for damage to the Goods or injury to any person) arising (directly or indirectly) from or in connection with:
(a) except where the Seller has an obligation under the Australian Consumer Law, any failure to deliver or delay in delivery of the Goods for any reason;
(b) any damage or loss due to delivering, unloading or packaging the Goods; or
(c) except to the extent that such damage was caused by the negligent act or omission of the Seller, damage to property caused upon entering premises to deliver the Goods.
4.3 Except for any guarantees, rights or remedies which cannot be excluded or modified under the Australian Consumer Law:
(a) the Buyer is contractually obligated to take delivery of and pay for all Goods ordered by it from the Seller, and which the Seller supplies or makes available to the Buyer in accordance with the Contract;
(b) any Order placed by the Buyer with the Seller is irrevocable; and
(c) the Seller will be under no obligation to accept Goods returned for any reason.
4.4 If the Seller does not receive forwarding instructions sufficient to enable it to dispatch the Goods within 14 days of notification to the Buyer that they are ready, the Buyer will be deemed to have taken delivery of the Goods from the date on which they are ready and the Seller may issue an Invoice to the Buyer in respect of such Goods.
4.5 Any costs incurred by the Seller due to any failure by the Buyer to accept the Goods at the time of delivery will be reimbursed by the Buyer to the Seller. The Buyer will be liable for storage charges payable in relation to such Goods not delivered monthly on demand by the Seller in accordance with the payment terms set out in clause 10.
4.6 The Seller reserves the right to make delivery in instalments, and each such instalment will be paid for as invoiced. Delay in delivery of any instalment will not relieve the Buyer of its obligation to accept any remaining deliveries. Without limiting clause 4.2, the Seller will not be liable for late delivery or delay in delivery.
5.1 Unless otherwise specified, where the Goods are delivered on CHEP or equivalent pallets (Hire Pallets), those Hire Pallets are not included in the price and will remain the property of their owner.
5.2 Where the Goods are delivered on Hire Pallets, the Buyer authorises the Seller to do all things necessary to transfer the Hire Pallets from the Seller’s relevant pallet hire account to the Buyer’s relevant pallet hire account. If the Buyer does not have a relevant pallet hire account, the Buyer agrees to either, at the Seller’s election:
(a) promptly open such an account, following which the Buyer authorises the Seller to do all things necessary to transfer the Hire Pallets from the Seller’s account to the Buyer’s account; or
(b) promptly return to the Seller or exchange with the Seller the Hire Pallets in the Buyer’s custody in good order and condition on the day of delivery (unless otherwise agreed with the Seller), and in any event within 30 days of delivery, or reimburse the Seller the cost of replacement or repair of lost or damaged Hire Pallets.
5.3 Without limiting clause 5.7, if the Buyer returns or exchanges Hire Pallets in accordance with clause 5.2, the Buyer indemnifies the Seller for any additional charges incurred by the Seller for the return or de-hire of those Hire Pallets.
5.4 Hire Pallets will be deemed to be still in the Buyer’s possession until received by the Seller. Except where the Buyer is a Consumer and to the extent permitted by law, all risks whatsoever associated with the Hire Pallets rest with the Buyer absolutely.
5.5 Containers, drums, cylinders and other storage vessels in which Goods are delivered and for which a deposit or rental charge is payable or which are otherwise made available by the Seller on a returnable basis, remain the property of the Seller and must not be used for any other commodity than that contained therein at the time of delivery. On their return in good order and condition by the Buyer and at the Buyer’s expense, to the factory or store of the Seller from which the Goods were delivered, the full amount of any deposit will be repaid to the Buyer. Containers will be deemed to be still in the Buyer’s possession until received at such factory or store. In the case of containers which are received at a factory or store of the Seller otherwise than in good order and condition, only such part of the deposit as in the opinion of the Seller is reasonable, having regard to their actual condition, will be repaid to the Buyer.
5.6 Containers in which Goods are delivered and for which a separate charge other than a deposit or rental charge is shown on the face of the Invoice are, unless otherwise specified therein or agreed by the parties, sold with the Goods and their price as shown on the invoice must be paid with the price of the Goods.
5.7 The Buyer indemnifies and must pay the Seller on demand for all actions, claims, fees, costs, liabilities, damages and expenses, howsoever arising (including hire charges, and all legal fees, all on a full indemnity basis) incurred or suffered by the Seller or its related entities in connection with the loss, or non-return in good order and condition, of any Hire Pallets or containers or other storage vessels or the failure by the Buyer to comply with this clause 5.
5.8 The Buyer acknowledges that the Seller may have a Security Interest in any containers, drums and cylinders described in clause 5.5 and clause
5.6 and the proceeds of these items. The Buyer will do anything required by the Seller to enable the Seller to register these Security Interests, with the priority the Seller requires, and to maintain those registrations.
Except for any guarantees, rights or remedies which cannot be excluded or modified under the Australian Consumer Law, the Buyer hereby acknowledges that it has made its own enquiries in relation to the suitability of the Goods and it has not relied on any service involving skill or judgment, or on any advice, recommendation, information or assistance provided by the Seller in relation to the Goods or their use or application, including any representations by the Seller in relation to their suitability for a particular purpose or any steps which may need to be taken in relation to their use.
7.1 The Buyer must examine the Goods upon delivery and notify the Seller in writing of any:
(a) Defects, within 30 days of delivery; or
(b) short supply of Goods made pursuant to this Contract, within 10 days of delivery.
7.2 Except where the Australian Consumer Law requires, if the Buyer does not notify the Seller in writing of any Defects or short supply within the applicable time periods specified in clause 7.1, the Buyer:
(a) is deemed to have accepted the Goods; and
(b) releases and discharges the Seller from and against any claims, actions, loss, damage or liability relating to any Defect in, or short supply of, the Goods.
7.3 The Buyer must preserve any Goods that are found to have a Defect in the state in which they were delivered and must allow the Seller (or its nominated agent) access to the Buyer’s premises to inspect the Goods. If the Seller, upon inspection, agrees with the Buyer that such Goods have a Defect, the remedies set out in clause 8.4 will apply. To the extent permitted by law, no claim will be allowed or returned Goods accepted if the Goods have been treated or processed in any manner.
8.1 Except for any guarantees, rights or remedies which cannot be excluded or modified under the Australian Consumer Law, all terms, conditions, representations, warranties or guarantees, whether express or implied, by contract, statute, common law, equity, trade, custom or usage or otherwise, in relation to the Goods, are hereby excluded.
8.2 To the maximum extent permitted by law and subject to clause 8.4:
(a) the Seller excludes all liability for any loss or damages, however caused (including by the Seller’s negligence), suffered or incurred by the Buyer in connection with or arising out of the Contract (including for any defect in the Goods or the supply of Goods described in the Contract to the Buyer) in excess of the total value of the Order which is the subject of the claim, whether or not the Seller was aware of the possibility of such loss to the Buyer or any third party when this Contract was entered into; and
(b) the liability of the Seller to the Buyer (and any party claiming through the Buyer against the Seller) for any claim for loss or damages (including legal expenses) made in connection with or arising out of the Contract (including for any defect in the Goods or the supply of Goods described in the Contract) whether in contract, tort (including negligence), under statute, in equity or otherwise will be strictly limited as follows (at the Seller’s election):
(i) in the case of Goods, the replacement or repair of the Goods, or the payment of the cost of replacing or repairing the Goods; or
(ii) in the case of services, supplying the services again, or the payment of the cost of providing the services again.
8.3 Notwithstanding any other provision of this Contract, the Seller will not be liable for any special loss or damages or Consequential Loss of any nature whatsoever arising from or in connection with this Contract (including any changes to these Terms and Conditions).
8.4 If the Australian Consumer Law confers certain rights, guarantees or remedies on the Buyer which are not able to be excluded, restricted or modified except in limited circumstances, the liability of the Seller for breach of any such right, guarantee or remedy is limited to (at the Seller’s election):
(a) in the case of Goods, the replacement or repair of the Goods, or the payment of the cost of replacing or repairing the Goods; or
(b) in the case of services, supplying the services again, or the payment of the cost of providing the services again.
8.5 To the maximum extent permitted by law, the Buyer assumes responsibility for and indemnifies the Seller and its employees and agents against all allegations, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines and other expenses (including investigation and legal fees) arising out of or in connection with:
(a) the Buyer’s handling, ownership, possession, further processing, transportation, disposal, sale or other use of the Goods;
(b) the Buyer’s violation or alleged violation of any law or regulation; or
(c) the Buyer’s negligent act or omission or wilful misconduct or breach of this Contract.
9.1 Unless otherwise agreed in writing by the parties, the price charged for the Goods will be exclusive of all applicable taxes and charges (including GST) and will be as per the price ruling as determined by the Seller at the date of delivery.
9.2 Unless otherwise agreed in writing by the parties, prices do not include the cost of delivery of the Goods, including but not limited to costs incurred by the Seller arising out of late notification by the Buyer of a change to the agreed delivery schedule, storage charges where the Goods are not collected immediately upon being made available and demurrage costs incurred by the Seller.
9.3 If this Contract comprises a quotation from the Seller to the Buyer in respect of an Order, then it is agreed that the price(s) indicated herein (plus any GST payable in accordance with clause 11 of these Terms and Conditions) will remain valid for 7 days from the date of the relevant Order Acceptance.
9.4 Notwithstanding any other provision in this Contract, the Seller may vary the price for the Goods upon written notice to the Buyer.
10.1 Subject to clause 10.6, and unless otherwise agreed in writing by the Seller (including where otherwise identified on any Invoice issued by the Seller), all Invoices are payable by the Buyer within 30 days of delivery of the Goods.
10.2 Without limiting the Seller’s rights under this clause 10, the Seller reserves the right to charge interest on any overdue amount at a rate equal to the Commonwealth Bank of Australia 90 days bank bill rate plus 2% per annum from the due date until payment in full is made.
10.3 Where the Buyer is in default in the performance of any of its obligations under the Contract (including these Terms and Conditions) and the Goods have not been supplied under a consumer contract for the purposes of the Australian Consumer Law (Consumer Contract), the Seller may refuse, without prejudice to any other rights it may have under the Contract or at law, to supply or deliver further Goods to the Buyer until such time as the Buyer has remedied that default, and / or may choose to terminate the Contract.
10.4 If the Goods have been supplied by the Seller under a Consumer Contract and the Buyer is in default in the performance of any of its material obligations under the Contract (including these Terms and Conditions), the Seller may refuse to deliver further Goods until such time as the Buyer has remedied that default and where:
(a) the Buyer has not notified the Seller of any damage, inaccuracies or defects under clause 7 of these Terms and Conditions; and
(b) the Buyer does not remedy that default within 14 days of the Buyer receiving written notification, or such other time as may be agreed by the parties, the Seller may terminate the Contract in relation to Goods that have not been delivered.
10.5 If:
(a) an administrator, liquidator or provisional liquidator is appointed to the Buyer or a resolution is passed or any steps are taken to appoint, or to pass a resolution to appoint, any administrator, liquidator or provisional liquidator to the Buyer;
(b) an application or order is made for the winding up or dissolution of the Buyer or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of the Buyer;
(c) a receiver, receiver and manager, trustee, other controller or similar officer is appointed over the assets or undertaking of the Buyer or any steps are taken to appoint, or to pass a resolution to appoint, a receiver, receiver and manager, trustee, other controller or similar officer to the Buyer;
(d) the Buyer makes defaults in any payments, suspends payment of its debts generally or is unable to pay its debts as and when they fall due or is presumed to be insolvent under applicable law, or enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(e) the Buyer is an individual and commits an act of bankruptcy or has a controller or trustee appointed in respect of the Buyer’s estate or any part of the Buyer’s property or assets; or
(f) the Buyer experiences any analogous event having a substantially similar effect to any of the events specified in paragraphs (a) to (e) above,
then the Seller may, at its option and without notice to the Buyer, exercise any or all of the following rights in addition and without prejudice to any other action, remedy or rights it may have under these Terms and Conditions or at law:
(g) withhold further deliveries or cancel any Order whether under this Contract or otherwise;
(h) terminate the Contract in relation to Goods that have not been delivered;
(i) claim the return of any Goods in the Buyer’s possession where title has not passed to the Buyer or exercise any other right or remedy available to the Seller under this Contract, the PPSA or any other applicable law, including to enforce the Security Interests created by the Contract;
(j) withdraw any credit facilities which may have been extended to the Buyer and require immediate payment of all amounts owed to the Seller by the Buyer; and
(k) issue an Invoice for, and demand immediate payment of, Goods ordered by the Buyer but not delivered.
In such circumstances, all amounts owing and outstanding to the Seller on any Invoice and irrespective of whether the due date on any Invoice has occurred or passed will become immediately due and payable. The Buyer will indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing payment of any overdue debt owed by the Buyer to the Seller (including enforcing any Security Interest arising under this Contract), including, without limitation, legal costs on a full indemnity basis and the costs charged to the Seller by a debt collection agency and/or bailiff.
10.6 Notwithstanding clause 10.1, the Seller may at all times in its sole and absolute discretion and without being under any duty or obligation to assign reasons to such discretion, alter or terminate the Buyer’s credit limit or payment terms without notice. Without limiting the generality of the foregoing, the decision of the Seller will be final and the Seller accepts no liability or responsibility for any loss or damages (including Consequential Loss), howsoever arising, incurred by the Buyer due to the operation of this clause.
10.7 The Buyer agrees that the Buyer may not make any Invoice related claim against the Seller unless full details of the claim have been provided in writing to the Seller by the Buyer within 90 days of the debt that is the subject of the Invoice related claim becoming due. In the event that the Buyer does not make a claim against the Seller for any specific Invoice in accordance with and as set out in this clause 10.7, the Buyer acknowledges and agrees that the Buyer waives its rights to make a claim in respect of the debt associated with that Invoice.
10.8 Termination of this Contract pursuant to its terms shall not entitle the Buyer to claim any indemnity, damage or other compensation of any nature whatsoever.
11.1 Notwithstanding any other provision of this Contract, to the extent that any supply made under or in connection with this Contract is a taxable supply (as defined in the GST Law), the Buyer must pay to the Seller, in addition to the consideration provided for under this Contract for that supply (unless it expressly includes GST), an amount (the additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Buyer must pay to the Seller the additional amount at the same time as payment is made for the consideration to which it is referable. This provision is subject to any other agreement regarding the payment of GST on specific supplies, and includes payments for supplies relating to the breach or termination of, and indemnities arising from, this Contract.
11.2 The Buyer is responsible for paying any other duties, taxes, government imposts (domestic or foreign) or charges, including any stamp duty (if applicable), in relation to the any supply made under the Contract, and the Seller may recover from the Buyer an additional amount on account of those duties, taxes, imposts or charges in accordance with clause 10.
11.3 Prices charged to and payable by the Buyer may be subject to changes to governmental levies, taxes, fees and duties from time to time.
12.1 The Seller is not liable for any failure to perform any of its obligations under this Contract as a result of any event beyond the Seller’s reasonable control including, without limitation, where the Seller is prevented or hindered, directly or indirectly, from manufacturing, delivering or supplying the Goods as a result of any act of God, war, fire, strikes, lockouts or other labour difficulty, government interference, transport delays, lack of production capacity or raw materials, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. In such circumstances, the Seller may suspend performance of any obligations under this Contract while the event continues. The Seller will not incur any liability to the Buyer in respect of such suspension.
12.2 If any of the events contemplated by clause 12.1 occur for more than 30 days, the Seller may, without liability, terminate any affected Order and/or this Contract immediately by notice in writing to the Buyer.
Except where legislation which cannot be excluded (such as the Australian Consumer Law) would make this clause 13 illegal, or where the inclusion of this clause 13 would otherwise make the Seller liable to a penalty, the Buyer releases and indemnifies the Seller and its related bodies corporate, and their respective officers, employees, consultants and agents, from and against all actions, claims, proceedings and demands (including those brought by third parties) which may be brought against it or them, whether on their own or jointly with those indemnified, and whether at common law, in equity or pursuant to statute or otherwise, in respect of any loss, death, injury, illness or damage (whether personal or property, and whether direct or consequential, including consequential financial loss) arising out of or in connection with the Buyer’s negligent act or omission or wilful misconduct, a breach of the Buyer’s warranties or obligations contained in this Contract or the use or condition of Goods sold to the Buyer, and from and against all damages, reasonable costs and expenses incurred in satisfying, defending or settling any such claim, proceeding or demand, except to the extent that such loss, damage, death or injury has been caused by the gross negligence or wilful misconduct of the Seller.
In addition to any right of lien to which the Seller may be entitled under the common law, the Seller is entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid the Seller in full for all Goods supplied by the Seller to the Buyer. The Seller may in its sole and absolute discretion sell any item that is subject to a lien, provided that the Seller will pay to the Buyer any surplus proceeds that are realised by the Seller from a sale of any such items after discharging in full all amounts outstanding to the Seller in respect of unpaid Goods and all reasonable costs of sale incurred by the Seller.
15.1 The Seller makes no representation or warranty of any kind, express or implied, that the Goods sold to the Buyer, or the use of such Goods, or articles made therefrom, either alone or in conjunction with other material, will not infringe any copyright, patent, design, trade mark or other intellectual property rights (whether registered, registrable or not). The Buyer agrees that it will promptly notify the Seller in writing of any claim or suit involving the Buyer in which any intellectual property right (including patent or trademark) infringement is alleged with respect to the Goods sold, and that the Buyer will permit the Seller, at its option, to control completely the defence or compromise of any such allegation of infringement.
15.2 The purchase of Goods under this Contract does not confer on the Buyer any licence or assignment of any copyright, patent, design or trade mark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Goods.
16.1 The Buyer may not assign its rights or delegate its performance under this Contract without the prior written consent of the Seller, and any attempted assignment or delegation without such consent will be void.
16.2 The Seller may assign its rights or novate its rights and obligations under this Contract (in whole or in part) to any person without the consent of the Buyer.
17.1 These Terms and Conditions may be varied and updated by the Seller from time to time. When the Buyer offers to purchase Goods from the Seller, the Buyer is offering to acquire the Goods on the most up-to-date version of these Terms and Conditions as notified to the Buyer by the Seller.
17.2 All notices must be in writing and signed by the sender or a representative of the sender and delivered by registered post, email or facsimile to the recipient's contact using the name and postal or email address or fax number stated in the relevant Order or application for credit. A notice will be conclusively taken to be duly given when delivered to the recipient at the address stated in the relevant Order or application for credit.
Waiver by the Seller of a breach of this Contract or of any right arising under or in connection with this Contract must be in writing and signed by the Seller. The Seller does not waive a right under or in connection with this Contract simply because it fails to exercise, delays in exercising, or partially exercises, that or any other right. A waiver of one breach of a term of this Contract does not operate as a waiver of another breach of the same or any other term.
19.1 No amount owing, whether present or future, actual, contingent or prospective and on any account whatsoever by the Buyer to the Seller may be set off against any amount owing, whether present, future, actual, contingent or prospective, to the Buyer under this Contract or on any other account whatsoever.
19.2 The Seller may set off any amount due and payable by the Seller to the Buyer against any amount due and payable by the Buyer to the Seller.
If a provision of the Contract would, but for this clause, be unenforceable:
(a) the provision must be read down to the extent necessary to avoid that result; and
(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.
21.1 Subject to clause 21.2, each party must ensure that it and its related bodies corporate will not:
(a) disclose or use the Confidential Information of the other party for a purpose other than those contemplated by this Contract;
(b) disclose the existence of or terms of this Contract; or
(c) disclose any information or documents supplied in connection with this Contract that are specifically indicated to be confidential and that are not in the public domain.
21.2 A party may disclose any Confidential Information (including the existence and terms of this Contract):
(a) as required or permitted by this Contract;
(b) that ceases to be confidential other than due to a breach of clause 21.1;
(c) received from a third party provided that it was not acquired directly or indirectly by that third party as a result of a breach of clause 21.1;
(d) to a bona fide prospective purchaser, investor, joint venture participant or financier (or any of their respective advisors) in relation to that party or its related bodies corporate, provided that:
(i) the recipient has first entered into confidentiality undertakings no less onerous than those contained with this Contract; and
(ii) the party disclosing the Confidential Information remains responsible for ensuring that the confidentiality of the Confidential Information is preserved; or
(e) required to be disclosed by law (except any information of the kind referred to in section 275(1) of the PPSA) or any government or governmental body, authority, stock exchange rule or agency having authority over a party or its related body corporate.
22.1 This Contract is governed by the laws in force in the State of Victoria, Australia.
22.2 Each party irrevocably submits to the non-exclusive jurisdiction of courts exercising jurisdiction in the State of Victoria, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Contract. The parties irrevocably waive any objection to the venue of any legal process on the basis that the process has been brought in an inconvenient forum.
22.3 The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
23.1 In this document, unless the context otherwise requires:
(a) Attaches has the same meaning as given to that term in the PPSA;
(b) Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of the Fair Trading Act 1999 (Vic);
(c) Business Day means a day other than a Saturday, Sunday or public holiday in Victoria, Australia;
(d) Buyer means the buyer specified in an application for commercial credit (or if there is no application, the person placing the Order, or on whose behalf the Order is placed) with the Seller, and any servant, agent, partner, contractor or employee of that person;
(e) Collateral has the same meaning as given to that term in the PPSA;
(f) Confidential Information means any information relating to this Contract, or to the affairs of a party or any related body corporate of that party that is disclosed in connection with this Contract;
(g) Consequential Loss means any loss or damage suffered by a party or any other person which is indirect or consequential, including, without limitation, loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of actual or anticipated savings, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity;
(h) Consumer has the meaning given to it in section 3 of the Australian Consumer Law;
(i) Contract means any contract to which these Terms and Conditions are expressed to form part, and, for the supply of Goods pursuant to an Order, the contract (which includes these Terms and Conditions) formed for supply of the Goods to the Buyer upon an Order Acceptance;
(j) Defect means a defect, flaw or imperfection in the Goods which prevents the Goods from being used for the purposes intended for such Goods or which makes the use of the Goods dangerous, but does not include anything which has been disclosed by us as a feature or limitation of the Goods prior to the date of purchase, or any defect, flaw or imperfection that is trivial or insubstantial;
(k) Financing Change Statement has the same meaning as given to that term in the PPSA;
(l) Financing Statement has the same meaning as given to that term in the PPSA;
(m) Goods means all products, materials, goods and services supplied or to be supplied by the Seller from time to time including, without limitation, any goods specified in an Order Acceptance or Invoice or supplied under this Contract;
(n) GST means any goods and services tax and any replacement or similar tax;
(o) GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(p) Invoice means the invoice issued by the Seller to the Buyer setting out the amount to be paid by the Buyer;
(q) Order means any order for Goods or offer to purchase Goods placed by the Buyer with the Seller in any form, including in writing or verbally;
(r) Order Acceptance has the meaning given in clause 3.1;
(s) Perfected has the same meaning as given to that term in the PPSA;
(t) PPS law means:
(i) the PPSA;
(ii) any regulation made pursuant to the PPSA; and
(iii) any other legislation or regulation made to implement, or contemplated by, any PPSA law referred to in paragraph (i) or (ii);
(u) PPSA means the Personal Property Securities Act 2009 (Cth);
(v) Purchase Money Security Interest has the same meaning as given to that term in the PPSA;
(w) Registration Commencement Time has the same meaning as given to that term in the PPSA; and
(x) Security Interest means:
(i) any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power, or title retention arrangement;
(ii) a security interest as defined in the PPSA; or
(iii) any document that grants or creates anything referred to in either paragraphs (i) or (ii) of this definition and any other thing which gives a creditor priority over any other creditor with respect to any asset or an interest in any asset;
(y) Seller means ChemCloud Pty Ltd ACN 647 447 041;
(z) Terms and Conditions means the terms and conditions set out in this document, as modified or amended in relation to a particular Order by a written Order Acceptance or in accordance with this document;
(aa) Verification Statement has the same meaning as given to that term in the PPSA.
23.2 The following rules apply in this document unless the context requires otherwise:
(a) Unless otherwise stated, an expression used or defined in the Corporations Act 2001 (Cth) has the same meaning in this document.
(b) Words indicating the singular include the plural and vice versa.
(c) Mentioning anything after ‘includes’, ‘including’ or similar expressions does not limit what else might be included.
(d) A reference to a party to this Contract includes the party's successors, permitted substitutes and permitted assigns.
(e) A reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for and any subordinated legislation issued under, that legislation or legislative provision.
(f) A provision of the Contract must not be construed to the disadvantage of a party merely because the provision is an exception or exemption clause for the benefit of that party.
(g) A reference to a right or obligation of any two or more persons comprising a single party confers that right, or imposes that obligation, as the case may be, on each of them severally and each two or more of them jointly. A reference to that party is a reference to any of those persons separately.
(h) The relationship between the Buyer and the Seller is one of contracting parties. This Contract does not create a relationship of agency, partnership, joint venture or employment between the parties. Neither party has any authority to act for or incur any liability or obligation on behalf of the other party in any manner.
(i) Where an act is to be performed on a day that is not a Business Day, the act will be required to be performed on the following Business Day.
(j) A reference to dollars is to Australian Dollars.
24.1 Acceptance by the Buyer of this Contract, as amended by the Seller from time to time, may be by any one of the following ways:
(a) by signing and returning a copy of this Contract;
(b) by performing an act that is done with the intention of adopting or accepting these conditions, including but not limited to continuing to order Goods; or
(c) by oral acceptance.
24.2 Failure to accept this Contract within seven days of receipt by the Buyer of this Contract may result in the immediate withdrawal of the Seller’s offer to supply Goods or services.
