Terms and Conditions

1 Dictionary

In these Terms, the words below have the following meanings:

Agreement means each Offer which is accepted by the Company under clause 3.2.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent State or Territory legislation.

Business Day means any day except a Saturday, Sunday or public holiday in Victoria.

Company means the company supplying goods and/or services under these Terms, being Spray Nozzle Engineering Pty Ltd ACN 056 441 724, Reel-Tech Pty Ltd ACN 056 441 555, DetectaClean Pty Ltd 604 328 154, SNE Agspray Pty Ltd ACN 638 400 843, Spray Nozzle Engineering Ltd RGN 684 94 48, Reel-Tech Ltd RGN 687 951 17 and Detectaclean Ltd RGN 116229226, as applicable.

Confidential Information means all information and other content disclosed by the Disclosing Party to the Receiving Party and includes these Terms and the prices of the Goods or Services but excludes information that:

(a) is public knowledge or becomes available to the Receiving Party from a source other than the Disclosing Party (otherwise than as a result of a breach of confidentiality); or

(b) is rightfully known to, or in the possession or control of the Receiving Party and not subject to an obligation of confidentiality in accordance with the terms of an Agreement.

Consequential Loss means:

(a) any form of indirect, special or consequential loss, including loss of reputation, loss of profits, loss of actual or anticipated savings, loss of bargain and loss of opportunity; and

(b) any loss beyond the normal measure of damages.

Consumer has the meaning provided to it in section 3 of the Australian Consumer Law.

Consumer Guarantee means a guarantee provided under Division 1 of Part 3-2 of the Australian Consumer Law.

Customer means the entity or person who has agreed to be bound by these Terms who requested that Goods and/or Services be supplied to it by the Company.

Customer Specifications has the meaning given to it in clause 13.1.

Default Rate means the interest rate which is fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 (Vic).

Delivery Fee means:

(a) the delivery fee set out in a Quote or agreed in writing between the parties; or

(b) if no delivery fee is set out in a Quote or agreed in writing between the parties, the costs incurred by the Company in delivering the Goods to the Customer.

Disclosing Party means a party who discloses its Confidential Information to a party to these Terms or an Agreement.

Due Date is defined in clause 4.4.

Excluded Services has the meaning given in clause 2.2.

Force Majeure Event means any event arising from, or attributable to, acts, events, omissions or accidents which are beyond the reasonable control of a party.

Goods means the goods to be supplied by the Company to the Customer under an Agreement.

Insolvency Event means, in relation to a body corporate, a liquidation or winding up or the appointment of a voluntary administrator, receiver, manager or similar insolvency administrator to that body corporate or any substantial part of its assets; in relation to an individual or partnership, the act of bankruptcy, or entering into a scheme or arrangement with creditors; in relation to a trust, the making of an application or order in any court for accounts to be taken in respect of the trust or for any property of the trust to be brought into court or administered by the court under its control; or the occurrence of any event that has substantially the same effect to any of the preceding events.

Intellectual Property Rights means any and all intellectual and industrial property rights anywhere in the world including but not limited to the rights comprised in any patent, copyright, design, trade mark, eligible layout or similar right whether at common law or conferred by statute, rights to apply for registration under a statute in respect of those rights and rights to protect trade secrets and know how, throughout the world for the full period of the rights and renewals and extensions.

Invoice has the meaning provided to it in clause 4.3.

Loss means any loss, liability, cost, expense, damage, charge, penalty, outgoing or payment however arising, whether present, unascertained, immediate, future or contingent and includes direct loss and Consequential Loss.

Offer has the meaning provided to it in clause 3.1.

Order means any order or other request by or for the Customer to the Company to supply to the Customer any Goods or provide it with any Services (or both), whether the order or request is written, verbal or implied in the circumstances and which may have been given in response to a Quote.

PDH Goods or Services means goods or services which, for the purposes of the Australian Consumer Law, are of a kind ordinarily acquired for personal, domestic or household use or consumption.

Purchase Price has the meaning provided to it in clause 4.1.

Quotation or Quote means a quote or proposal, if any, provided by the Company to the Customer in respect of the Goods and/or Services.

Receiving Party means a party who receives Confidential Information from or on behalf of the Disclosing Party.

Rise & Fall means any addition or reduction in actual costs incurred by the Company:

(a) in importing the Goods into Australia, to the extent the difference in costs is due to a change in the exchange rate of the Australian dollar and is incurred prior to the date of delivery of the Goods; and

(b)to the extent the Delivery Fee is based on clause (a) of the definition of ‘Delivery Fee’, in delivering the Goods to the Customer caused by factors outside the reasonable control of the Company.

Services means the services to be supplied by the Company to the Customer under an Agreement (excluding any Excluded Services).

Specifications means any physical, qualitative, technical or descriptive specifications, dimensions, weights or other particulars of the Goods or Services or photographs or illustrations of the Goods which are supplied by the Company or which may be available on the website, including as provided in any Quote, Order, price list, catalogue, brochure or other document which describes the Goods or Services.

Tax or Taxes means any tax, levy, duty, charge, impost, fee, deduction, compulsory loan or withholding (including corporate tax, personal income tax, fringe benefits tax, payroll tax, withholding tax, excise and import duties, consumption tax, value added tax or any other taxes, levies or charges) which is assessed, levied, imposed or collected by any government agency, and includes any interest, fine, penalty, charge, fee or any other amount imposed on or in respect of any of those amounts.

Terms means these Terms and Conditions.

2 Application

2.1 These Terms apply to and govern supply by the Company of Goods and provision of Services to the Customer from time to time and, more specifically, apply to and govern the supply by the Company of Goods and/or Services to the Customer which are to be provided under an Offer accepted by the Company.

2.2 Any engineering, installation and commissioning services (Excluded Services) will not be provided by the Company under an Agreement and will only be provided by the Company upon the execution of a separate agreement by the parties outlining the terms of the provision of the Excluded Services by the Company to the Customer.

3 Formation of Agreement

3.1 The Customer acknowledges and agrees that by submitting an Order to the Company the Customer makes an offer to the relevant Company for the Company to supply it with the Goods and/or provide it with the Services on the terms of:

(a) these Terms;

(b) the Order; and

(Offer).

3.2 A contract will be formed between the Company that receives the Offer and the Customer in respect of each Offer upon the earlier of:

(a) the Company notifying the Customer in writing that it accepts the Customer’s Offer;

(b) the Company accepting, in full or part, payment from the Customer for any Goods or Services the subject of the Offer;

(c) the Customer accepting delivery of the Goods or performance of the Services the subject of the Offer to the Customer; or

(d) the Company otherwise confirming its acceptance of the Offer.

3.3 An Agreement formed under clause 3.2 will comprise these Terms, the Order (only to the extent that any additional terms in the Order are accepted by the Company in writing) and the Quote (if any).

3.4 The Company is not bound to accept any Offer and may decide not to accept any Offer for any reason in the Company’s sole and absolute discretion.

4 Price and payment

4.1 Unless otherwise agreed by the parties, the price the Customer must pay for the Goods and/or Services under each Agreement will be the sum of:

(a) the price for the Goods and/or Services specified in the Quote or, if there is no Quote, in the Order; and

(b) the Delivery Fee,

(Purchase Price), as adjusted by notice from the Company to the Customer to account for Rise & Fall.

4.2 Subject to clause 15, unless otherwise expressly specified by the Company or in these Terms, all prices stated are stated exclusive of Taxes and the Customer is solely responsible for the payment of all Taxes levied or payable in respect of the Goods and/or Services.

4.3 The Company may invoice the Customer for the Purchase Price at any time following formation of the relevant Agreement (Invoice).

4.4 Unless otherwise agreed in writing between the Customer and the Company, the due date for payment by the Customer to the Company of the Purchase Price for the Goods and/or Services supplied pursuant to an Agreement is 7 days from the date of the Invoice, or any other date agreed to by the parties in writing (Due Date).

4.5 The Company may require payment of the Purchase Price in full prior to the Company delivering the relevant Goods or providing the Services.

4.6 If the Customer fails to make any payment by the Due Date, breaches any term of an Agreement or is the subject of an Insolvency Event, then, without prejudice to any other right or remedy available to the Company and to the extent permitted by law, the Company may, in its sole and absolute discretion, elect to do any one or more of the following:

(a) suspend any further deliveries to the Customer arising from any Agreement;

(b) enter the property of the Customer in order to repossess the Goods and the Customer grants the Company and its agents an irrevocable licence to do so;

(c) charge the Customer interest (both before and after any judgement) on the unpaid amount at the Default Rate, which interest will accrue and be chargeable from the first day on which an amount becomes overdue until the Company receives payment of all amounts (including all interest) by way of cleared funds; and

(d) exercise any rights which the Company may have under law, including the Personal Property Securities Act 2009 (Cth).

4.7 A party (First Party) may not set off or combine any amount owing by the other party (Second Party) to the First Party, whether or not due for payment, against any money due for payment by the First Party to the Second Party under an Agreement and the First Party must pay, and not withhold, any amount due to the Second Party under an Agreement notwithstanding that the First Party may be in dispute with the Second Party regarding the Goods or Services supplied under an Agreement.

5 Delivery of Goods and provision of Services

5.1 The Company will deliver the Goods to the Customer in the manner:

(a) determined by the Company; or

(b) as otherwise agreed between the Company and the Customer.

5.2 The Customer will be responsible, at its own cost, for the unloading of any Goods at the delivery location and there must be a representative of the Customer present at the delivery location at the time delivery is made of the Goods and, if no representative is present, a redelivery fee equal to the Delivery Fee may be charged by the Company.

5.3 Without limiting any rights which the Customer may have under the Australian Consumer Law, the Customer must, prior to taking possession of the Goods, inspect the Goods and immediately notify the Company in writing if the Goods are not fit for any purpose for which the Customer intends to use the Goods, are less than the number meant to be delivered under the Agreement, have any defect or otherwise do not meet any Specifications.

5.4 In the event of the Customer returning or failing to accept any delivery of the Goods, the Company will be entitled to:

(a) payment for those Goods;

(b) treat the obligation to supply the remainder of the Goods (if any) as cancelled by the Customer; and

(c) at the risk and cost of the Customer and without limiting any other rights the Company may have, store any Goods which the Customer refuses to take delivery of or fails to collect.

5.5 The Company will use its reasonable endeavours to deliver the Goods and provide the Services on any date specified or estimated by the Company or set out in a Quote or Order, however the Customer acknowledges that:

(a) these dates are estimates only and the Company is not liable for any Loss for not delivering the Goods or providing the Services on the date specified or estimated by the Company; and

(b) if the Company does not currently stock a Good, then there may be a delay in the supply of that Good until the Company has restocked that Good; and

(c) if a Good needs to be delivered urgently or overnight to the Customer, the Company may agree to expedite delivery if the Customer agrees to pay an additional fee for that expedited delivery.

5.6 Without limiting clause 5.5, the Company may deliver or provide a portion of the Goods or Services and may invoice or otherwise charge the Customer for that portion. The Customer may not refuse to accept delivery of the Goods or to pay for the Goods or Services because only a portion of the quantity ordered was delivered or provided and the Customer agrees that the Company will not be liable for any Loss that the Customer suffers as a result of any delay or cancellation.

6 Return of Goods

6.1 The terms of this clause 6 are subject to:

(a) clause 9; and

(b) the terms of any express warranty provided in writing by the Company in respect of particular Goods (if any),

and if a Good is not of acceptable quality, faulty, defective or damaged, the Customer may have rights under the Australian Consumer Law which are not affected by this clause 6.

6.2 Subject always to any applicable provisions of the Australian Consumer Law, the Customer may only return the Goods to the Company with the prior written consent of the Company and the Company will be under no obligation to accept Goods returned to it or provide any refund or other remedy in respect of any Goods returned. The Customer may only return Goods following receipt of a ‘return authority’ from the Company.

6.3 The Customer acknowledges that Goods that are specifically manufactured to Customer Specifications and Goods that are not regularly stocked by the Company are not able to be returned by the Customer to the Company unless the Company is required by law to accept any such return or agrees otherwise.

6.4 Any claims in respect of the Goods made by the Customer to the Company must be made by written notice to the Company as soon as possible after an Agreement is formed. If the Customer gives the Company a written notice under clause 6.4, the Customer must:

(a) use its best endeavours to preserve the Goods (fair wear and tear excepted); and

(b) at the Company’s option, allow the Company or its authorised representative to inspect the Goods or return some or all of the Goods to the Company (at the Customer’s expense) in the same condition as when received by the Customer (fair wear and tear excepted).

6.5 Subject always to any applicable provisions of the Australian Consumer Law, the provision to the Customer of any refund or other remedy in respect of any Goods which are returned to the Company will be at the Company’s sole and absolute discretion and will not be considered an acknowledgment by the Company that the Goods were damaged or defective or did not meet the Specifications.

6.6 By providing written notice under clause 6.4, the Customer:

(a) warrants and represents to the Company that the Goods:

(i) have not been used in conjunction with any hazardous materials or any material exposure to which presents a risk to human health; and

(ii) will be returned cleaned and free from all liquid and solid residues; and

(b) acknowledges that the acceptance by the Company of any return of Goods is conditional on the matters in clauses (i) and (ii) being true and accurate in all respects.

6.7 Without limiting clause 6.2, the Customer acknowledges that the Company may require that the Customer to provide written and signed confirmation that the matters referred to in clause 6.6(a) are accurate, as a condition of the Company accepting any return of Goods under this clause 6.

6.8 If any Goods which are returned to the Company:

(a) are not damaged and meet the Specifications;

(b) do not comply with clause 6.6(a),

then the Company may, at the Customer’s cost, return those Goods to the Customer.

7 Title and risk of Goods

7.1 Title to, and property in any Goods supplied under an Agreement remain with the Company and will only pass to the Customer once all moneys owing by the Customer to the Company in respect of the Agreement or any other agreement or arrangement between the Customer and the Company have been paid in full.

7.2 Risk in the Goods passes to the Customer upon the Goods being removed from the Company’s premises (or that of the Company’s supplier or agent) for delivery to the Customer.

7.3 The Customer is responsible for arranging, and taking out in its own name and its own cost, any insurance in respect of the Goods from the time risk passes to the Customer under this clause.

7.4 The Customer is responsible for all Loss or damage to the Goods, however caused, occurring after risk in the Goods passes to the Customer under clause 7.2.

7.5 In the event that the Customer is required to return any Goods to the Company, risk in the Goods passes to the Company on confirmation of receipt of the Goods by the Company.

7.6 Until full title, property and ownership of the Goods passes to the Customer in accordance with clause 7.1, and while the Goods remain in the Customer’s full control and possession:

(a) subject to clause 7.8, the Customer must hold the Goods as the Company’s fiduciary agent and bailee and must not sell, lease, dispose of or otherwise deal with the Goods in any way without the Company’s prior written consent;

(b) the Customer must keep and maintain the Goods in good and substantial repair;

(c) the Customer must insure the Goods for their full replacement value (which must not be less than the Purchase Price) and must store the relevant Goods separately from any other goods and in a way that enables the Goods to be clearly identified as the Company’s and referrable to a particular Invoice;

(d) the Company may at any time after payment is overdue require the Customer to deliver up the Goods to the Company and, if the Customer fails to deliver up the Goods immediately, the Company may enter the premises of the Customer or any third party where the Goods are stored and repossess them; and

(e) the Customer must not pledge or grant a security interest in or in any way charge by way of security for any indebtedness, any of the Goods and if the Customer does pledge or in any way charge by way of security, for any indebtedness, any of the Goods for which property and ownership has not passed to the Customer, the Customer must remove the pledge, charge or security interest immediately and all moneys owing by the Customer to the Company will (without prejudice to any other right or remedy of the Company) immediately become due and payable to the Company.

7.7 For the purposes of the Company exercising its rights under clause 7.6(d), the Customer:

(a) expressly authorises and grants the Company and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party to remove or arrange for the removal of the Goods; and

(b) the Customer indemnifies the Company against any Loss that may be incurred or sustained by the Company, its employees or agents, as a result of the entry of those premises where the Goods are stored, except where such Loss is directly caused by the wrongful acts or omissions of the Company.

7.8 Notwithstanding that title to the Goods has not passed to the Customer under clause 7.1, the Customer may, subject to obtaining the Company’s prior written approval, resell the Goods or any part of them in the name of the Customer but only as agent for the Company and may deliver any Goods so sold to the buyer of those Goods but only in the ordinary course of its business and on terms which will not prejudice the Company’s ability to obtain any amount paid or due to be paid by the buyer of Goods (Sale Proceeds) and:

(a) any Sale Proceeds must be held by the Customer on trust for the Company and any amounts received by the Customer must be banked in a separate bank account relating only to the sale proceeds of any Goods and must be forwarded as soon as possible to the Company in satisfaction of any amount owed by the Customer in respect of the Goods; and

(b) the Customer must keep and maintain separate records in relation to the Sale Proceeds received and held by the Customer and must provide those records to the Company immediately upon request by the Company.

7.9 If an Insolvency Event occurs in respect of the Customer then, without the need for notice or demand by the Company, the Customer acknowledges that any sale or purported sale of the Goods will not be in the ordinary course of the Customer’s business and the proceeds of any Goods sold in those circumstances will, to the extent of any money owing by the Customer to the Company, be held on trust for the Company by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the Customer.

8 PPSA

8.1 Words and expressions used in this clause 8 which are not defined in these Terms but are defined in the Personal Property Securities Act 2009 (Cth) (PPSA) have the meaning given to them in the PPSA.

8.2 Unless a Customer has paid for Goods in respect of an Agreement before they are delivered to the Customer, each Customer acknowledges that:

(a) the Agreement for the supply of Goods created under these Terms is a security agreement for the purposes of the PPSA, under which the Customer grants the Company a security interest in the Goods and over any amount owed to the Customer in respect of the Goods (Account) to secure all monies owing by the Customer to the Company from time to time;

(b) where the Company has other enforcement rights in addition to the enforcement rights provided for in the PPSA, those other enforcement rights will continue to apply; and

(c) the Company is not obliged to act in any way to dispose of or to retain any Goods which have been seized by the Company or any person nominated by the Company under its rights under the PPSA.

8.3 Without limiting anything else in these Terms, the Customer consents to the Company effecting a registration on the register in relation to any security interest created by or arising in connection with, or contemplated by an Agreement or these Terms, including in relation to the Goods and any Account. The Customer agrees to promptly do all things necessary to ensure that any security interest created under these Terms is perfected and remains continuously perfected, the Company’s priority position is preserved or secured and any defect in any security interest, including registration, is overcome.

8.4 The Customer must promptly take all reasonable steps which are prudent for its business under or in relation to the PPSA (including doing anything reasonably requested by the Company for that purpose in relation to the Goods or the Account). Without limiting the foregoing, the Customer must:

(a) register a security interest in relation to the Goods where the Customer on sells the Goods to a third party or incorporates the Goods into another good or product;

(b) where appropriate, take reasonable steps to identify security interests in relation to the Goods in the Customer’s favour and to perfect and protect them, with the highest priority reasonably available; and

(c) not register a financing change statement in relation to any registration made under paragraphs (a) or (b) without the Company’s prior written consent.

8.5 The Customer must indemnify, and on demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the register, and for the enforcement of any rights arising out of any of the Company’s security interests.

8.6 The Customer must not change its name, address or contact details without providing prior written notice to the Company.

8.7 To the extent that the PPSA permits, the Customer waives its rights to receive a copy of any verification statement or financing change statement; to receive any notice required under the PPSA, including notice of a verification statement; to reinstate the security agreement by payment of any amounts owing or by remedy of any default; and under sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 127, 128, 129, 130, 132, 134(2), 135, 136(3), (4) and (5), 137, 142 and 143 of the PPSA.

8.8 The Customer may only disclose information or documents, including information of a kind referred to in section 275(1) of the PPSA, if the Company has given prior written consent.

9 Liability

9.1 If the Customer is a Consumer and the Company supplies PDH Goods or Services to the Customer, the Company acknowledges that the Customer may have certain rights under the Australian Consumer Law in respect of the Consumer Guarantees as they apply to the PDH Goods or Services supplied by the Company and nothing in these Terms should be interpreted as attempting to exclude, restrict or modify the application of those rights.

9.2 If the Customer is a Consumer and any goods or services supplied by the Company to the Customer are non PDH Goods or Services, the Company’s liability to the Customer in connection with any breach of the Consumer Guarantees in respect of those non PDH Goods or Services is limited (at the Company’s discretion) to:

(a) in the case of Goods:

(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; or

(iv) the payment of the cost of having the Goods repaired; and

(b) in the case of Services:

(i) the supplying the Services again; or

(ii) the payment of the cost of having the Services supplied again.

9.3 Subject to clause 9.7, if the Customer makes a claim against the Company in connection with or arising out of these Terms which includes a cause of action other than for a breach of a Consumer Guarantee then, to the extent the claim, or part of the claim, does not relate to a Consumer Guarantee and to the extent permitted by law, the Company’s total aggregate liability arising in connection with all such claims will be limited to the Purchase Price for the Goods and Services in connection with which the claim arose.

9.4 In relation to the supply of Goods which are non PDH Goods or Services, if the Company is liable to indemnify the Customer under section 274 of the Australian Consumer Law, the Company’s liability to the Customer is limited to an amount equal to the lower of:

(a) the cost of replacing the Goods;

(b) the cost of obtaining equivalent Goods; or

9.5 Subject to clauses 9.6 and 9.7, the Customer’s total aggregate liability arising in connection with all claims the Company makes against the Customer in connection with or arising out of these Terms shall be limited to:

(a) 200% of the Purchase Price of the Goods and Services supplied in connection with which the relevant liability arose; or

(b) If the liability did not arise in connection with any Goods or Services supplied, 200% of the payments made by the Customer under these Terms in the previous 12 months.

9.6 Clause 9.5 does apply in relation to any claim which the Company may make against the Customer:

(a) for any payment due under these Terms or an Agreement (including payment of the Purchase Price);

(b) arising out of a breach of clause 11 or the Customer’s (alleged or actual) infringement of any Intellectual Property Rights;

(d) in connection with a claim by the officers or representatives of the Company in their personal capacity (including for defamation or libel).

9.7 Without limiting and subject to clauses 9.1 and 9.2, neither party shall be liable to the other party for any Consequential Loss.

10 Notification of claims

10.1 The Customer must notify the Company immediately if it becomes aware of:

(a) any claim; or

(b) any death, serious injury or serious illness,

in respect of, or caused by, the Goods or other goods of which the Goods are a component or mixed with and the Customer will take all reasonable steps to mitigate any Loss arising as a consequence of the claim, death, serious injury or serious illness.

10.2 If Goods are sold by the Customer to a third party for commercial use by that third party, the Customer must impose on the third party an obligation to notify the Customer immediately if the third party becomes aware of:

(a) any claim; or

(b) any death, serious injury or serious illness,

in respect of the Goods or other goods of which the Goods are a component or mixed with and to take all reasonable steps to mitigate Loss arising as a consequence of the claim, death, serious injury or serious illness.

11 Intellectual Property

11.1 The parties acknowledge and agree that, unless otherwise agreed in writing, as between the Company and the Customer all Intellectual Property Rights in the Goods and any material created as part of the Services vests in and exclusively belongs to and are irrevocably assigned to the Company and the Customer agrees that it must not infringe or use the Intellectual Property Rights of the Company which exist in the Goods or materials created as part of the Services without the prior written consent of the Company.

11.2 The Customer must not remove, deface, change, distort, delete or cover up:

(a) any name plate or mark on the Goods which indicates that the Company is the owner of the Goods; or

(b) any patent, copyright or other proprietary notices which appear in writing on or in any part of the Goods.

11.3 The Customer must only sell or promote the Goods using any trade mark, name or brand which is approved in writing by the Company.

11.4 The Customer must not make available for purchase, sell or promote any:

(a) good which is a copy or imitation, in whole or in part, of any Good; or

(b) Good which has been modified or varied (other than the affixation of any labels or other packaging on the Goods).

12 Indemnity

The Customer indemnifies the Company and holds the Company harmless from and against all Losses (including all legal costs, and any other associated fees and costs) for which the Company incurs as a direct or indirect result of:

(a) recovering any amounts the Customer owes to the Company (including any fees or commission paid to a debt collector);

(b) any breach of an Agreement by the Customer;

(c) the use of, or reliance on, any Customer Specifications (including any claims for breach of any Intellectual Property Rights relating to Goods manufactured in accordance with Customer Specifications); and

(d) any negligent or wilful act or omission by the Customer, the Customer’s employees, agents, servants, contractors or others for whom the Customer is legally responsible.

13 Specifications

13.1 If an Offer has been accepted by the Company, the Customer acknowledges that the Offer was on the basis of, and in reliance upon, any information, drawings, specifications, data, representations, statements and documents provided by the Customer, set out in an Order or otherwise approved by the Customer (Customer Specifications).

13.2 The Specifications are approximate only and the Company makes no representation or warranty as to the completeness or accuracy of the Specifications and the Customer is responsible for making its own enquiries in relation to the completeness and accuracy of the Specifications provided.

13.3 Where any instructions, materials or information in whatever form (including any Customer Specifications) are required to be provided by the Customer to the Company before the Company can proceed with or complete the provision of the Goods or Services, those instructions, materials or information must be supplied by the Customer to the Company within a reasonable time (as determined by the Company) so as to enable the Company to deliver the Goods or Services within any agreed time frame.

14 Confidentiality

14.1 The Receiving Party:

(a) may use Confidential Information solely for the purposes of the relevant Agreement;

(b) must keep confidential all Confidential Information; and

(c) may disclose Confidential Information only to (i) employees and contractors who (A) are aware and agree that the Confidential Information must be kept confidential and (B) either have a need to know the Confidential Information (and only to the extent that each has a need to know), or have been specifically approved by the Disclosing Party; (ii) as required by law or securities exchange regulation; or (iii) with the prior written consent of the Disclosing Party.

14.2 The Receiving Party must notify the Disclosing Party immediately once it becomes aware of any breach of confidentiality in respect of the Confidential Information and must take all reasonable steps necessary to prevent further unauthorised use or disclosure of the Confidential Information.

15 GST

15.1 In this clause, words and expressions which are defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended, varied or replaced from time to time) have the same meaning given to them by that Act.

15.2 Unless otherwise expressly stated in writing in an Agreement, all amounts payable by the Customer in connection with an Agreement do not include an amount for GST. If GST is payable on any supply made by the Company under these Terms, the Customer must pay to the Company, in addition to and at the same time as the payment for the supply, an amount equal to the amount of GST on the supply. Where the Customer is required by these Terms to reimburse or indemnify the Company for any Loss or other amount incurred, the amount to be reimbursed or paid will be reduced by the amount of any input tax credit that the Company will be entitled to claim for the Loss or amount incurred and increased by the amount of any GST payable by the Company in respect of the reimbursement or payment.

16 Force Majeure

16.1 The Company will not be liable for any failure to perform or delay in performing its obligations under an Agreement if that failure or delay is due to a Force Majeure Event.

16.2 If a Force Majeure Event under clause 16.1 exceeds 20 Business Days, the Company may immediately terminate the Agreement by written notice to the Customer.

17 Termination

17.1 Without limiting the Company’s other rights under these Terms, and to the extent permitted by law, the Company may terminate any and all Agreements with immediate effect by written notice to the Customer if:

(a) the Customer fails to make any payment under the Agreement to the Company by the due date for that payment and the Customer has not remedied the failure to make payment within 7 days of receiving notice of the failure to make payment;

(b) the Customer is the subject of an Insolvency Event;

(c) the Customer has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;

(d) the Customer has materially breached any term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied; or

(e) in accordance with clause 16.2.

17.2 Without limiting the Customer’s other rights under these Terms, and to the extent permitted by law, the Customer may terminate any and all Agreements with immediate effect by written notice to the Company if:

(a) the Company is the subject of an Insolvency Event;

(b) the Company has breached any material term of the relevant Agreement (including these Terms) which is not capable of remedy;

(c) the Company has materially breached any term of the relevant Agreement (including these Terms) which is not capable of remedy; or

(d) the Company has breached a term of the relevant Agreement (including these Terms) which is capable of remedy and has not remedied the breach within 14 days of receiving notice requiring the breach to be remedied.

17.3 On termination of an Agreement:

(a) the Customer must not sell or part with possession (other than as required under clause 17.3(b)) any Goods the subject of the Agreement (other than any Goods which have been paid for);

(b) the Customer must, at its cost, immediately return to the Company all Goods the subject of the Agreement (other than any Goods which have been paid for) and any displays and other promotional and advertising materials in relation to the Goods;

(c) the Company may enter the premises of the Customer or any third party to repossess any Goods not returned under clause 17.3(b) and the Customer expressly authorises and grants the Company and its agents an express, irrevocable licence to enter the premises of the Customer or relevant third party to remove or arrange for the removal of those Goods; and

(d) all money owed by the Customer to the Company will become immediately due and payable.

17.4 Each party retains any rights, entitlements or remedies it has accrued before termination, including the right to pursue all remedies available to either party at law or in equity.

18 Cancellation

18.1 The Company may cancel or suspend any Agreement effective immediately upon providing the Customer with written notice of cancellation or suspension where the Company will be unable to supply the relevant Goods or provide the Services to the Customer for reasons outside of its reasonable control, provided that if the Company cancels an Agreement under this clause 18.1 it will refund to the Customer any amounts already paid by the Customer for the Goods or Services subject to the cancellation and which are not provided to the Customer. The refund of any amounts will be the Customer’s sole remedy against the Company in respect of any cancellation under this clause 18.

19 Acknowledgements and representations

19.1 By making an Offer, the Customer warrants and represents to the Company that it has read and understood these Terms prior to making the Offer, and agrees to be bound by them in full.

19.2 The Customer acknowledges that:

(a) Goods that are purchased and not manufactured by the Company and re-sold to the Customer are subject to the terms and conditions of any warranty issued by the manufacturer of those Goods and the Company, to the extent permitted by law, assigns the benefit of that manufacturer’s warranty to the Customer;

(b) Specifications and any other technical information are subject to change without notice by Spray Nozzle Engineering;

(d) it is solely the Customer’s responsibility to determine the suitability of the Goods for any particular application, purpose or use based on the Specifications and its own enquiries and due diligence.

20 Information provided

20.1 This clause 20 is subject to clause 9 and does not apply to any Excluded Services provided pursuant to a separate agreement.

20.2 The Customer agrees that any advice, recommendation, information, document, deliverable or service provided by the Company or its employees or agents in relation to the Goods, their use and application or any other matter whatsoever (Information) is based upon research, testing and enquiries believed by the Company to be appropriate and reliable.

20.3 Any Information provided is offered as helpful suggestions only and without any liability or responsibility on the part of the Company or its employees or agents and is accepted by the Customer acting upon it on this basis.

20.4 The Company gives no warranty in relation to the Information or its use, or that the Information will not infringe any third-party rights including any Intellectual Property Rights.

20.5 The Customer acknowledges and agrees that the chemical and temperature compatibility along with dimensional, pressure and performance suitability of the Goods not excluding all other aspects of their Specification are the exclusive responsibility of the Customer. Chemical compatibility charts and product performance data including dimensional information is available upon request by the Customer.

21 Inconsistency

21.1 Unless otherwise specified in these Terms, in the event of an inconsistency between any of the documents listed in clause 3.3, the following order of precedence will apply to the extent of the inconsistency:

(a) the prices and quantity of Goods and/or Services set out in a Quote (if any);

(b) these Terms;

(d) the Invoice; and

(e) without limiting clause 21.2, any terms in the Order which are accepted by the Company in writing.

21.2 These Terms will prevail over any Customer terms and conditions, except to the extent specifically agreed by the Company in writing and any terms or conditions included in an Order or other document provided or issued by the Customer will only be binding on the Company if expressly agreed by the Company in writing.

22 Miscellaneous

22.1 In these Terms:

(a) the singular includes the plural and vice versa;

(b) the word person includes a firm, a body corporate, an unincorporated association, body or organisation established pursuant to international treaty, intergovernmental body, or government authority and other official authority;

(c) a reference to a document or legislation includes a reference to that document or legislation as varied, amended, novated or replaced from time to time;

(d) the meaning of general words is not limited by specific examples introduced by ‘includes’, ‘including’, ‘for example’ or ‘such as’ or similar expressions;

(e) a reference to a person includes a reference to the person’s executors, administrators, successors, substitutes (including, but not limited to, persons taking by novation) and permitted assigns;

(f) headings are inserted for convenience and do not affect the interpretation of these Terms; and

(g) no provision will be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Terms or the inclusion of the provision in the Terms.

22.2 A failure to exercise or delay in exercising any right under these Terms does not constitute a waiver and any right may be exercised in the future. Waiver of any rights under these Terms must be in writing and is only effective to the extent set out in that written waiver.

22.3 If any provision of these Terms is void, unenforceable or illegal and would not be so if words were omitted, then those words are to be severed and if this cannot be done, the entire provision is to be severed from these Terms without affecting the validity or enforceability of the remaining provisions.

22.4 The termination or expiry of these Terms or any Agreement does not operate to terminate any rights or obligations under an Agreement that by their nature are intended to survive termination or expiration, and those rights or obligations remain in full force and binding on the party concerned including without limitation the rights and obligations under clauses 1, 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 20, 21 and 22.

22.5 These Terms each Agreement are governed by the laws in force in Victoria and the Customer and the Company submit to the non-exclusive jurisdiction of the courts of Victoria.

Version 7.23 last reviewed October 2023