Terms & Conditions
1. GENERAL
1.1 The Agreement shall consist of the following documents:
(a) these Terms and Conditions;
(b) Quotation; and
(c) Your Purchase Order, where applicable (“Agreement”).
1.2 If there is any conflict or inconsistency between the documents constituting the Agreement, the documents will rank in order of precedence in accordance with the order they appear in clause 1.1.
2. TERM
2.1 The Term of the Agreement will be:
(a) if the Goods are supplied on a single occasion, a term limited to the single supply; or
(b) if the Goods are supplied by Us on more than one occasion, an ongoing term from the Commencement Date until the Agreement ends in accordance with this Agreement (“Term”).
3. QUOTATION AND ORDERING
3.1 All Goods are supplied or provided in accordance with this Agreement.
3.2 By placing an order online, verbally or by issuing a Purchase Order You agree to be bound by these Terms and Conditions, or as amended and agreed by the Parties.
3.3 Any terms and conditions attached to Your Purchase Order will not be considered as part of this Agreement.
3.4 The Quotation is based on the goods, materials and equipment being available from Our normal point of supply.
4. PRICE
4.1 In consideration of the supply of Goods by Us, You agree to pay the Price strictly at the times and in the manner required in the Quotation.
4.2 We will invoice You for Goods when supplied and, unless otherwise agreed in writing, You must pay invoices issued within thirty (30) days after the end of month from the date of Our Tax Invoice.
4.3 If You fail to make full payment when due, We may charge simple interest accruing daily at 6% on any amount that remains due and unpaid.
4.4 You acknowledge that the Price payable is exclusive of any GST and We will add GST to the Price payable.
4.5 We may adjust the Price from time to time resulting from a Change in Law, supplier price increases or CPI increases. If requested, We will provide you with evidence in support of the increased Prices.
5. VARIATION
5.1 Either Party may seek a variation to the Quotation. We may provide a revision to the Price associated with the variation. Any variation must be in writing and agreed by each Party.
5.2 If the variation is not accepted by You, then:
(a) We are under no obligation to perform the variation; and
(b) You may terminate the Agreement. If terminated, You remain liable to pay for any Goods provided prior to termination.
6. DELIVERY AND INSPECTION
6.1 Unless otherwise agreed, You are responsible for the collection or delivery of any Goods and costs associated with the collection or delivery.
6.2 Toll Manufactured Goods must be collected by You and at Your cost, unless otherwise agreed, within one Business Day from notice provided by Us to You.
6.3 You are deemed to accept the Goods on collection or delivery into Your care, custody and control or Your agent, carrier or contractor, whichever the case may be.
6.4 We are not responsible for any damage to the Goods caused by or which arises from the storage or handling by or on Your behalf.
6.5 Where We are responsible for delivery of the Goods, delivery will be completed as determined by Us. As far as reasonable, We will use best endeavours to accommodate any specific delivery requests made by You.
6.6 We reserve the right to make part deliveries of any order where Goods are not immediately available for despatch together. Each part delivery may be invoiced separately and shall constitute a separate sale of Goods. A part delivery of an order shall not invalidate the balance of an order.
6.7 We may, at our discretion or unless otherwise agreed, charge a reasonable fee for the delivery of Goods.
6.8 You must inspect all Goods on delivery and must within twenty-four (24) hours of delivery notify Us in writing of any defect/damage, shortage in quantity or discrepancy. You are deemed to have accepted the Goods thereafter.
6.9 You must notify any other alleged defect in the Goods/Services as soon as reasonably possible after any such defect becomes evident. We will require evidence of any alleged defect.
7. TITLE AND RISK IN GOODS
7.1 Title of the Goods shall remain with Us until payment of the Price is received by Us in full.
7.2 Risk in the Goods passes immediately to You on delivery and/or collection into the care, custody and control of You or Your agent, carrier or contractor, whichever the case may be.
7.3 Where on-loan equipment is supplied for the dispensing of Goods sold by Us to You, We may register the equipment on the PPSR. The title to on-loan equipment remains with Us at all times.
8. WARRANTIES
8.1 We make no express warranties or representation in relation to the Goods supplied by Us.
8.2 Goods may be returned in accordance with our Returns Policy.
8.3 Where samples of any Goods are provided by Us, the sample is only provided as an indication of the quality of the Goods and We provide no warranty over the quality of any future Goods delivered to be identical to the sample provided to You.
9. SUBCONTRACTORS
9.1 We may engage subcontractors to provide any part of the Goods and/or Services on Our behalf. In such circumstances, We will ensure that the subcontractors hold the suitable qualifications, insurance and necessary licences.
9.2 The engagement of a subcontractor will not release Us from liability in respect of the provision of the Goods and/or performance of the Services.
10. INSURANCE
10.1 We will procure and maintain for the Term of the Agreement the following insurance:
(a) Product and Public Liability to a limit of $20 million; and
(b) Workers Compensation as required by law.
10.2 At Your request, We will provide copies of certificates of currency of valid insurance policies.
11. INDEMNITY
11.1 A Party will be liable for and agrees to indemnify (“Indemnifying Party”) the other Party (“Indemnified Party”) for any Loss, suffered or incurred by the Indemnified Party directly in connection with, or arising out of this Agreement, relating to:
(a) any breach of this Agreement by the Indemnifying Party;
(b) any negligent act or omission by the Indemnifying Party;
(c) any defective performance, non-performance or delay in performance of the Agreement;
(d) any wilful, fraudulent, negligent or unlawful act or omission of the Indemnifying Party; and
(e) any death or personal injury caused or contributed to by any act or omission of the Indemnifying Party; except to the extent that the Loss is directly attributable to the negligence, or wrongful act or omission of the Indemnified Party in which case it is reduced proportionately.
12. LIMITATION OF LIABILITY
12.1 Nothing in this Agreement purports to modify or exclude statutory guarantees provided for by the Australian Consumer Law.
12.2 To the extent permitted by statute Our liability to You for supply of Goods, will be limited to the replacement of the Goods or refund any money you have paid for the Goods.
12.3 To the extent permitted by law, Our total liability under this Agreement whether in contract, tort (including negligence) or otherwise arising out of Our performance of the Agreement, will be limited to recovery under a policy of insurance or where insurance does not apply, shall be limited, in the aggregate to the Price actually paid to Us by You.
12.4 Subject to Australian Consumer Law, We will not be liable for any defect or damage which may be caused (in whole or part) by or arise as a result of:
(a) Your failure to properly maintain or store any Goods;
(b) Your use of the Goods for any purpose other than that for which they were designed;
(c) You continuing to use any Goods after any defect became apparent or should have become apparent to a reasonably prudent user; and
(d) Your failure to follow any instructions or guidelines provided by Us.
12.5 Notwithstanding any clause, neither Party will be liable for any Consequential Loss suffered by the other Party in connection with the supply of Goods and/or the Services under this Agreement.
13. CONFIDENTIALITY
13.1 The Parties agree to maintain confidentiality of any Confidential Information exchanged during this Agreement.
13.2 Neither Party must use Confidential Information for any purpose other than the performance of the obligations under this Agreement or disclose Confidential Information to any third party, except in accordance with this Agreement.
13.3 A Party may disclose Confidential Information to a third party, if the Party has obtained prior written approval, or disclosure is:
(a) necessary for the conduct of any legal proceedings arising in relation to this Agreement;
(b) compelled by a court; or
(c) required by law.
13.4 All Confidential Information remains the property of the disclosing Party and must be returned on expiration or termination of this Agreement on request.
14. INTELLECTUAL PROPERTY
14.1 We own all Intellectual Property of any concept, development or material of any kind provided to You or used in connection with this Agreement.
14.2 We grant You a non-exclusive, royalty-free, revocable, non-transferable licence to use all rights in Our Intellectual Property for any purpose in connection with this Agreement and You agree You will have no right or interest whatsoever to any Intellectual Property.
15. TERMINATION, SUSPENSION AND DISCONTINUANCE OF SUPPLY
15.1 This Agreement will end on completion of the Term.
15.2 Where you are in breach of the these Terms and Conditions, We reserve the right to immediately suspend, cancel or discontinue the supply of Goods and/or Services to You without further notice and We will not incur any liability to You in respect of such suspension, cancellation or discontinuation of supply of any Goods or Services.
15.3 This Agreement may otherwise be terminated by either Party by giving the other Party thirty (30) days written Notice of termination.
15.4 Either Party may terminate this Agreement with immediate effect by giving written Notice of termination upon the happening of any of the following events, where applicable:
(a) if there is a failure to observe any term of this Agreement and failure to remedy the breach within twenty (20) days after receiving Notice specifying the breach and requiring it to be remedied; or
(b) if the other Party commits a material breach of the Agreement which is incapable of rectification; or
(c) if You enter into a deed of arrangement or an order is made for Your company to be wound up; or
(d) if an administrator, receiver or receiver/manager or a liquidator is appointed to the Customer pursuant to the Corporations Act 2001; or
(e) if You would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001.
15.5 Upon termination of this Agreement, We will be entitled to:
(a) all amounts due to Us for the supply of any Goods;
(b) all other expenses reasonably incurred by Us as a result of the termination.
15.6 All fees, expenses or reimbursements payable by You to Us up to and including the date of termination must be paid by You within thirty (30) days after the date of termination.
16. FORCE MAJEURE
16.1 A Party is not liable for failure to perform its obligations under this Agreement where there is a Force Majeure Event.
16.2 The Party affected by these circumstances must promptly take all reasonable steps to minimise any delay or damages caused by a Force Majeure Event and provide notice to the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
16.3 If the Force Majeure Event continues for more than ninety (90) days, either Party may terminate the Agreement by giving seven (7) days’ notice to the other Party.
17. DISPUTE RESOLUTION
17.1 Any disputes arising out of this Agreement must be first resolved through negotiation in good faith and in reasonable timeframes.
17.2 Failing which the Parties may enter into mediation before commencing legal action. The costs of mediation must be borne equally between the Parties.
18. NOTICE
18.1 Any notice given under this Agreement must be in writing, signed by the Party and be delivered personally, pre-paid post or email.
18.2 A notice is deemed to have been received:
(a) if delivered by hand, when delivered to the address;
(b) if sent by pre-paid post, the second day after the date of posting; or
(c) if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.
18.3 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
18.4 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.
19. GOVERNING LAW
19.1 This Agreement is governed by and shall be construed in accordance with the laws of the State of Western Australia. The Parties agree to submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Western Australia and any court having jurisdiction to hear appeals from these courts.
20. COUNTERPARTS
20.1 This Agreement may be executed in counterparts. All counterparts together constitute the Agreement.
21. SEVERABILITY
21.1 In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of the Terms and Conditions.
22. WAIVER
22.1 A default, delay or omission by either Party of any of the provisions of this Agreement will not operate as a waiver of any subsequent breach of the same or other provisions.
23. ASSIGNMENT
23.1 Neither Party shall transfer or assign their rights under this Agreement to any third party without the written consent of the other Party, which consent shall not be unreasonably withheld.
24. DEFINITIONS AND INTERPRETATION
24.1 In this Agreement, the following expressions have the following meanings:
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth) as amended from time to time;
Business Day means a day that is not a Saturday, Sunday or public holiday in Western Australia;
Change in Law means a change of a Legal Requirement, or interpretation of, a Legal Requirement including a change in any fee or charge payable in connection with any Legal Requirement that occurs on or after the Commencement Date of the Agreement;
Commencement Date means the earlier of the date on which You place an order or Our acceptance of Your purchase order;
Confidential Information means any information relating to a Party that is designated as or would reasonably be considered to be confidential information, and which is not publicly available and relates in any manner to the operations of the disclosing Party, their suppliers or customers;
Consequential Loss means any Loss that does not arise naturally, including but not limited to the costs of replacing any real or personal property, special losses or any loss of profit, revenue, contract, business, business reputation, goodwill, opportunity, or facilities or services;
Force Majeure Event means industrial disputes of general application which are not particular to the affected Party or its personnel and which are not limited to the Premise; cyclone, hurricane, flood, fire or earthquake; or war, revolution, embargo, riot, act of terrorism, or civil disturbance; that is beyond the control of the Party affected by that event and prevent the performance by that Party of any of its obligations under this Agreement provided that the event or circumstance:
(a) is beyond the control of the Party affected by that event or circumstance;
(b) prevents the performance by the affected Party of any of its obligations under this Agreement; and
(c) cannot be prevented, overcome or remedied by the exercise by the Affected Party of a reasonable standard of care and diligence or the expenditure of a reasonable sum of money;
Goods means any product, item, object or thing of any nature which is sold by Us to You;
GST means goods and services tax or similar value-added tax levied or imposed in Australia pursuant to GST laws;
Intellectual Property means all intellectual property rights of any kind, subsisting now or in the future including each of the following owned or used by or on behalf of the Parties and developed in connection with the business or operations of each Party before, during or after the duration of this Agreement:
(a) know-how;
(b) trademarks, whether registered or unregistered;
(c) domain names;
(d) business names;
(e) Confidential Information;
(f) copyright, moral rights, inventions, patents, patent applications, designs; and
(g) any other Intellectual Property.
Legal Requirements means any Australian statute, ordinance, regulation or by-law, orders, awards, commission (including the Fair Work Commission) and proclamations of the Commonwealth and the State of Western Australia and includes certificates, licences, consent, permits, approvals and requirements of organisations having jurisdiction applicable to the Goods and/ or Services, standards, codes and guidelines applicable to the Goods and/ or Services, including any Fees or charges payable in connection;
Loss means any loss, damage, liability, interest, claim, expense, outgoing, penalty, fine or cost of any kind;
Parties means You and Us, and Party means either one of the two;
PPS Act means Personal Property Securities Act 2009 (Cth), as amended from time to time;
PPSR means a registration made under the PPS Act;
Premises means the place made available to Us by You in connection with this Agreement;
Price means the price as set out in the Quotation, Purchase Order, proposal, order confirmation, and/or Tax Invoice or as otherwise advised by Us to You which is exclusive of GST, but is inclusive of all other costs and charges;
Purchase Order means the purchase order for Goods and/or Services issued by You to Us from time to time containing, among other things, a description of the Goods and/or Services;
Quotation means the quotation issued by Us to You, and if more than one form is issued, means the latest form. If an order is placed over the telephone, and a written quotation is not issued prior to acceptance of the offer, the quotation shall be Our records of the telephone order;
Returns Policy means our return policy found on Our website;
Services means the services as specified in the Quotation;
Tax Invoice means Our invoice setting out the amount owed for the Goods and/or Services provided by Us;
Terms and Conditions means the general terms and conditions contained within this document;
Toll Manufactured Goods means any Goods manufactured on a made-to-order basis specifically for the Buyer;
“You”, “Your”, “Buyer” means the person to or for whom We supply the Goods and/or Services and, where comprising two (2) or more persons, means those persons or entities jointly and severally; and
“We”, “Us”, “Our”, “Seller”, means Chemical Formulators Pty Ltd (Chemform) and its subsidiaries and includes Our officers, workers and contractors.
24.2 In this Agreement:
(a) references to a party include as the context requires respective executors, administrators, successors and permitted assignors;
(b) references to a person include any other entity recognised by law and vice versa;
(c) headings, underlining’s and marginal notes are only included for ease of reference and do not affect interpretation;
(d) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;
(e) references to parties, clauses, schedules, annexures, appendices or exhibits are references to parties, clauses, schedules, annexures, appendices or exhibits to this Agreement unless otherwise stated;
(f) words denoting the singular number include the plural and vice versa; and
(g) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it.