coolchem (A.B.N. 38 147 127 396)
CONDITIONS OF SALE (Clauses 1 to 19)
(a) For the purpose of these Conditions of Sale, the expressions ‘Buyer’ means the customer and you, ‘Seller’ and ‘CoolChem’ means CoolChem and ‘Goods’ means the goods purchased under an order and these Conditions of Sale.
(b) An order placed by the Buyer is deemed to be an order incorporating these Conditions of Sale (as set out below) notwithstanding any inconsistencies which may appear in the Buyer’s order or other documentation provided by or on behalf of the Buyer unless otherwise expressly agreed in writing by the Seller.
(c) The Buyer acknowledges that they are purchasing the Goods for resale purposes and not for personal, household or domestic use.
2. DEFECTS, WARRANTY & LIABILITY
(a) Subject to any statutory obligations of the Seller under the Australian Consumer Law the following provisions apply:
I. The Seller’s liability for goods manufactured by it is limited to making good any defects by repairing the defects or at the Seller’s option by replacement, provided that:
A. defects have arisen solely from faulty materials or workmanship;
B. the Goods have not received maltreatment, inattention or interference;
C. the seals of any kind on the Goods remain unbroken; and
the Buyer, within twenty four (24) hours of delivery of the Goods (time being of the essence), notifies the Seller in writing of any alleged defect and provides the Seller with a sample of the goods the subject of the defect. If the Buyer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or issue.
II. The Seller’s liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the Australian Consumer Law is limited to:
A. in the case of goods, any one or more of the following:
(i) the replacement of the goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) the payment of the cost of having the Goods repaired; or
B. in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
III. The Seller’s liability under s274 of the Australian Consumer Law is expressly limited to a liability to pay the Buyer an amount equal to:
A. the cost of replacing the Goods;
B. the cost of obtaining equivalent Goods; or
C. the cost of having the Goods repaired, whichever is the lowest amount.
(b) Subject to any statutory obligations of the Seller under the Australian Consumer Law and except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way whatsoever.
(c) Subject to any statutory obligations under the Australian Consumer Law, any descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of these Conditions of Sale. Without prejudice to that, any performance figures given by the Seller are estimates only. The Seller shall be under no liability for damages for the goods’ failure to attain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognised tolerances applicable to such figures.
The Seller will take no responsibility what so ever for damage to the Goods in transit (either cost or replacement) when freight is arranged at receiver’s request. Reasonable efforts will be made by the Seller to deliver the Goods to the Buyer on the date agreed between the parties, but the Seller shall be under no liability whatsoever should delivery not be made on that date. For deliveries outside the Adelaide metropolitan area, unless the Buyer otherwise specifies, the Seller may use any carrier it deems appropriate. The Buyer shall be responsible for the charges of the carrier for all deliveries made outside the Adelaide metropolitan area, (unless otherwise stated in writing by the Seller). For the purposes of this clause, “Adelaide metropolitan area” means that area which in the Seller’s opinion is within the metropolitan area of Adelaide.
3B PART DELIVERIES
The Seller reserves the right to make part deliveries of any order of Goods and each part delivery shall constitute a separate sale of the Goods upon these Conditions of Sale. A part delivery shall not invalidate the balance of any order by the Buyer.
Subject to the law, the Buyer waives any claim for shortage of any Goods delivered if the Buyer has not lodged a written claim with the Seller within 48 hours from the date of receipt of the Goods by the Buyer.
Risk of loss of or damage to the Goods shall pass to the Buyer upon delivery of the Goods to the Buyer or collection of the goods by the Buyer or its agent or in the case of delivery outside the Adelaide metropolitan area upon delivery to the carrier.
(a) Title of any and all Goods held by the Buyer shall remain with the Seller and the Seller reserves the right to repossess all Goods and dispose of such Goods in realisation of any outstanding debt until such time as:
I. full payment is made for all amounts owing by the Buyer to the Seller on account of all goods that have from time to time been supplied by the Seller to the Buyer (“Buyer’s Total indebtedness”) so that the Buyer’s Total Indebtedness is discharged; or
II. the Buyer sells the Goods to its customers in accordance with Clause 7
(b) Subject to clause 6 and the PPSA, if the Buyer fails to pay any amount of the Buyer’s Total Indebtedness when it is due to the Seller, the Seller may without notice and without prejudice to any of its other rights and remedies recover and/or resell the goods or any of them. For that purpose, the Buyer:
I. Authorises the Seller (without prior notice to the Buyer) to enter any premises where goods title in which remains in the Seller (“Seller’s Goods) may be situated and to such reasonable force as may be required to enter any such premises and to take possession of the Seller’s Goods;
II. Undertakes to the Seller to procure the consent of all persons having any interest in the premises where the Seller’s Goods may be situated, to entry of those premises by the Seller
III. Indemnifies and keeps indemnified the Seller from all claims, actions or suits whatsoever out of or in connection with or in relation to the entry by the Seller to any premises where the Seller’s Goods may be situated;
IV. Shall reimburse the Seller for all expenses incurred by it in recovering and/or reselling the Seller’s Goods
(c) Until title passes to the Buyer, the Buyer shall separately store the Seller’s Goods in a way that clearly manifest the Seller’s title.
(d) The Buyer acknowledges that until the Buyer’s Total Indebtedness is discharged, it holds the goods as bailee of the Seller and that a fiduciary relationship exists between them.
(e) Upon default by the Buyer under these Conditions of Sale the Seller has the right to the Goods and the beneficial interest in and conduct of any claims, suits, demands or actions which the Buyer may have against any other person arising from the sale of the Goods. The rights contained in this sub-clause shall not be affected by the part performance by the Buyer of any of its obligations under these Conditions of Sale.
(f) If the Buyer adds any parts or accessories to the Seller’s Goods, the Seller shall become the owner of those added parts and accessories as security for full payment by the buyer of all monies due to the Seller by the Buyer for the Seller’s Goods (as long as the value of the total security is less than 5 times the amount due to the Seller by the Buyer) and the term “Seller’s Goods” for the purpose of this sub-clause shall here appropriate be read and construed accordingly.
(g) If the Buyer makes new goods or other goods from or with the Seller’s Goods or if the Seller’s Goods become a constituent part of or mixed with other goods, the Seller shall become the owner of those new goods or other goods as security for full payment by the Buyer of all monies due to the Seller by the Buyer for the Seller’s Goods (as long as the value of the total security is less than 5 times the amount due to the Seller by the Buyer), and the term “Seller’s Goods” for the purpose of this sub-clause shall where appropriate be read and construed accordingly.
6A PERSONAL PROPERTIES & SECURITIES ACT (“PPSA”)
6A.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Seller and Buyer by these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.
6A.2 Upon agreeing to these Conditions of Sale by placing an order, the Buyer acknowledges and agrees that these Conditions of Sale:
(a) constitute a security agreement for the purposes of the PPSA; and
(b) create a security interest in:
I. all Goods previously supplied by the Seller to the Buyer (if any);
II. all Goods that will be supplied in the future by the Seller to the Buyer.
6A.3 The Buyer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to:
I register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
II. register any other document required to be registered by the PPSA; or
III. correct a defect in a statement referred to in clause 6A.3(a)I or 6A.3(a)II;
(b) indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Seller; and
(e) immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
6A.4 The Seller and the Buyer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Conditions of Sale.
6A.5 The Buyer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
6A.6 The Buyer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
6A.7 Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
6A.8 The Buyer shall unconditionally ratify any actions taken by the Seller under clauses 6A.3 to 6A.5.
7. SALE OF GOODS BY BUYER
The Seller authorises the Buyer to sell on the Seller’s behalf the Goods or any part of them title in which is retained by the Seller provided such sale is made in the ordinary course of the Buyer’s business and is for full value. The Buyer shall keep the proceeds from all such sales in a separate identifiable account as the beneficial property of the Seller and shall account to the Seller for such proceeds until such time as the Buyer’s Total Indebtedness is discharged.
The price of the goods payable by the Buyer shall be the price published in the Seller’s current published price list issued, or as negotiated in writing from time to time by the Seller. All pricing included in this price list excludes G.S.T. The Seller reserves the right to change prices in the current price list without notification to the Buyer.
9. CREDIT TERMS FOR 30 DAY ACCOUNTS
Unless otherwise agreed in writing credit terms are as stated below:
(a) At the end of each month you receive a statement of account, which clearly indicates the total your account is in debt for at the end of each month.
(b) At the end of the next month the balance of the statement is payable in full and shall only be treated as being paid once the payment has been received by the Seller.
Should a Buyer not comply with these terms the seller reserves the right to action one of the following:
(a) Your account will be put on “stop supply”, meaning further orders will not be supplied until payment is made
(b) A $5 account charge may be applied at the discression of the Seller
OR (c) Your account will be closed.
If at any time the credit worthiness of the Buyer becomes in the Seller’s opinion unsatisfactory, the Seller reserves the right to demand immediate payment of all outstanding amounts and may charge interest on any outstanding sums at Commonwealth Bank maximum overdraft rates.
10. IMMEDIATE PAYMENT
Notwithstanding these conditions of sale and in particular clause 9, payment shall become due immediately upon the Buyer (being a natural person) committing any act of bankruptcy or the Buyer (being a company) committing any act which entitles any person to apply to wind up the Buyer, or a receiver or receiver and manager of the Buyer is appointed.
11. INTEREST ON OVERDUE AMOUNTS
If the Seller is not paid for any goods on the due date specified in these conditions of sale, without prejudice to any other right or remedy, all outstanding monies shall bear interest of daily balances until paid at a rate if interest per annum equal to the interest rate charged by the Commonwealth Bank of Australia on overdraft accounts for sums up to $50,000 and such money together with all interest shall be recoverable by the Seller from the Buyer. For the purposes of these conditions of sale, the term “Buyer’s Total Indebtedness” shall be deemed to include all interest payable to this clause.
12. PLACING OF ORDER & DESPATCH OF GOODS
(a) Orders must be made by CoolChem Part Number, as stated in the Pricelist of the Seller (as advised from time to time).
(b) Priority will be given to monthly purchase orders placed prior to month end; such orders will only be dispatched within 4 working days prior to month end.
(c) The Seller will not accept responsibility for wrongly supplied products where codes are incorrect or not quoted when placing orders, and in particular telephone through orders or hand written faxes, which are sometimes unclear as to the Buyer’s intention. Unless otherwise advised and agreed with the Buyer, a tax invoice will be sent and delivered with Goods.
No order may be cancelled except with consent in writing of the Seller and on terms which will indemnify the Seller against all losses.
13 DRUM AND PALLET CHARGES.
Deposits paid by the Buyer for drums noted on the Seller’s published price list as being returnable will be refunded by the Seller only if the drums are returned with bungs inserted or lids and rings attached (as the case may be) and are in the Seller’s opinion in good order and condition. All branded pallets remain the responsibility of the Buyer and the freight company, the Seller will accept NO RESPONSIBILITY for any discrepancies or subsequent losses or costs.
14. RETURNED GOODS
The Buyer shall only be entitled to credit for returned Goods, which are in a resaleable condition. Merchandise which has been in the Buyer’s inventory for more than twelve (12) months is not eligible for credit or replacement. The Buyer shall pay to the Seller for all such resaleable goods returned, a restocking fee being 10% of the price payable for those Goods or a minimum processing fee of $30.00 per order whichever proves to be the greater. Should the returned Goods not be in a saleable condition then a further fee shall apply to cover costs of packaging or reworking to bring the goods back to a resaleable condition. All freight charges incurred for returned goods shall be borne by the Buyer. Credit will not be given until Goods are returned to the factory and inspected by Quality control for condition.
Failure by the Seller to insist upon strict performance of any part of these Conditions of Sale shall not be deemed as a waiver of them or of any rights the Seller may have and no express waiver shall be deemed a waiver of any subsequent breach of any part of these conditions of sale.
All contracts entered into between the parties for the sale of goods upon these Conditions of Sale shall be deemed to be made in the State of South Australia and the parties agree to submit all disputes arising between them to the courts of that state.
The Buyer must comply with all laws, bylaws and statutory and regulating authority applicable to the Buyer and in particular without limitation all those relating to the environment, safety, dangerous goods, storage, handling, insurance and sale of goods supplied by the Seller under these Conditions of Sale.
(a) The Buyer agrees that the Seller may review these Conditions of Sale at any time. If following any such review there is to be a change to these Conditions of Sale, then that change will take effect from the date on which the Seller notifies the Buyer of such change. The Buyer shall be under no obligation to accept such changes except where the Seller supplies further Goods to the Buyer and the Buyer accepts such Goods.
(b) If any provisions of these Conditions of Sale shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
(c) if any provisions of these Conditions of Sale are inconsistent with the PPSA, the PPSA shall prevail to the extent of the inconsistency.
(d) Nothing in these Conditions of Sale is intended to have the effect of contracting out of the applicable provisions of the Australian Consumer law except to the extent permitted by that law.
19. WEB SITE DISCLAIMER
The below disclaimer applies to the Buyer’s use of the Seller’s web site (site”).
By accessing, browsing, and or using the site, you acknowledge that you have read, understood, and agree to be bound by this disclaimer and any other operating rules or policies that may be publicised by CoolChem from time to time. If you do not agree to these terms, do not use this site.
Permission is granted to electronically copy and print in hard copy portions of this site for the sole purpose of navigating through the site or using it as a personal resource. Any other use of materials on this site, including reproduction for purposes other than those noted above, such as the modification, distribution or republication, without the prior written consent of CoolChem is prohibited.
CoolChem is the sole owner of the information collected on this site. We will not sell, share, or rent this information to others in ways different from what is disclosed in this statement. CoolChem collects information from our users at several different points on our website.
CoolChem provide this site content “as is” and without warranties of any kind, either expressed or implied, to the fullest extent permissible pursuant to applicable law. CoolChem does not warrant the functions contained in this site or its content will be uninterrupted or error-free, that defects will be corrected, or that the site or its servers are free of viruses or other harmful components.
CoolChem makes reasonable efforts to place accurate, current content on this site. However, CoolChem makes no warranties or representations as to its accuracy and assumes no liability or responsibility for any errors or omissions in the site content.
Under no circumstances, including, but not limited to, negligence and gross negligence, shall CoolChem be liable for any direct, incidental, special, consequential, indirect, or punitive damages resulting from the use of, or the inability to use, this site or its content, even if CoolChem Products or a CoolChem authorized representative has been advised of the possibility of such damages.
In no event shall Coolchem’s total liability to you for all damages, losses, and causes of action exceed the amount paid by you, if any, for accessing the site. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages, so the above limitation or exclusion may not apply to you. We reserve the right, at any time, to decline your order.
While CoolChem strives to keep the information on this site accurate, complete, and up-to-date, CoolChem and its suppliers will not be liable for any errors appearing on this site, and CoolChem reserves the right to reject any order in the event of an error.
CoolChem may at any time amend these terms and conditions. Your continued use of this site is conditioned on the terms and conditions stated at the time of your use. You should visit this page prior to using this site to determine the current terms and conditions to which you are bound.
LINKS TO OTHER SITES
This site may include links to other Internet web sites not operated by CoolChem as a convenience to its users. CoolChem does not endorse any such web sites or the information, material, products or services contained on or accessible through the sites. Your access and use of such sites, including all information, material, products and services contained on such sites, shall be solely at your own risk.