Conditions générales de vente

DEFINITIONS AND INTERPRETATION

The following words have the following meanings in these Conditions, unless the context requires otherwise:

“ACL” means the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth);

“Amounts Outstanding” means, at any time, all amounts then owing by You to Us, whether arising under a Contract or otherwise;

“Business Day” means a day other than a Saturday, Sunday or public holiday in Sydney, New South Wales;

“Conditions” means these General Terms & Conditions of Sale, as amended from time to time under clause 16.1;

“Consequential Loss” means any loss of profit, revenue, production, business opportunity, goodwill or reputation, and any indirect or consequential loss or damage;

“Consumer Guarantees” means the guarantees that apply to a supply of goods under Part 3-2, Division 1 of the ACL;

“Contract” means a contract for the supply of Goods formed under clause 1.2, comprising these Conditions, the Order and Pricing Confirmation and the details in Your Purchase Order to the extent accepted by Us;

“Default Event” has the meaning given in clause 12.1;

“Force Majeure Event” has the meaning given in clause 14.1;

“Goods” means the goods described in an Order and Pricing Confirmation, including any replacement or substitute goods supplied under these Conditions;

“GST” has the meaning given in the GST Act, and “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“Insolvency Event” means, in relation to You: an application (not withdrawn or dismissed within 21 days) or order is made, or a resolution is passed, to wind You up; a liquidator, provisional liquidator, administrator, receiver, receiver and manager or controller is appointed to You or any of Your assets; You enter into or propose a scheme of arrangement or composition with creditors; You become bankrupt or insolvent; or You cease to carry on business;

“Intellectual Property” means any patent, registered design, trade mark, copyright, confidential information, circuit layout, firmware or software, or any other industrial or intellectual property right, whether registered or not;

“Invoice” means a tax invoice issued by Us to You for Goods;

“Loss” means any loss, liability, damage, expense or cost;

“Non-Excludable Rights” has the meaning given in clause 1.4;

“Order and Pricing Confirmation” means Our written acceptance of a Purchase Order (including by email) setting out the Goods, the price and the estimated dispatch date;

“PPSA” means the Personal Property Securities Act 2009 (Cth), and the terms “financing statement”, “financing change statement”, “proceeds”, “purchase money security interest”, “security interest” and “verification statement” have the meanings given in the PPSA;

“Purchase Order” means a purchase order or other order or offer to purchase Goods provided by You to Us, in any form;

“You, Your, customer” means the customer named in the Purchase Order, Order and Pricing Confirmation or Invoice (including its successors, personal representatives and permitted assigns) and, where this consists of more than one person, the obligations of those persons are joint and several;

“Us, We, Our, Kelco” means Kelco Engineering Pty Ltd (ABN 20 002 834 844) and its successors and permitted assigns.

In these Conditions, “including” and similar expressions are not words of limitation, headings are for convenience only, a reference to a statute includes any amendment or replacement of it, and all monetary amounts are in Australian dollars unless stated otherwise.

1.0 APPLICATION OF THESE CONDITIONS

1.1These Conditions apply to every supply of Goods by Kelco to You. They prevail over any terms and conditions contained in or referred to in a Purchase Order or other document provided by You, which are excluded and form no part of any Contract unless We expressly agree otherwise in a document signed by an authorised Kelco officer that refers to these Conditions.

1.2A Purchase Order is an offer to purchase. We may accept or decline any Purchase Order. A Contract is formed only when We accept a Purchase Order by issuing an Order and Pricing Confirmation or, if earlier, when We dispatch the Goods. Each Order and Pricing Confirmation forms a separate Contract.

1.3We will provide a copy of these Conditions on request, and the version that applies to a Contract is the version current on the date of the Order and Pricing Confirmation.

1.4Nothing in these Conditions excludes, restricts or modifies any right or remedy (including any Consumer Guarantee), or any liability of Kelco, which cannot lawfully be excluded, restricted or modified (“Non-Excludable Rights”). Every clause of these Conditions is to be read subject to this clause 1.4.

2.0 PAYMENT TERMS

2.1For account holding customers, each Invoice is due and payable in full within thirty (30) days after the end of the month in which the Invoice is issued, unless a different period is stated in the Order and Pricing Confirmation.

2.2Customers who do not hold an approved credit account must pay for Goods in full before dispatch. We will issue a pro-forma invoice or Invoice setting out the price for the Goods ordered.

2.3Credit accounts and credit limits are at Our discretion. We may, acting reasonably, suspend or withdraw Your credit account or reduce Your credit limit by written notice, including where payments are overdue, Your credit limit is exceeded, or We reasonably believe there has been a material adverse change in Your financial position. Such a notice applies to Purchase Orders accepted after the date of the notice.

2.4Each consignment of Goods is a separate supply and may be invoiced and paid for separately. Payments received will be applied first to interest and recovery costs payable under these Conditions and then to the oldest outstanding Invoices, unless We agree otherwise.

2.5Payment must be made by electronic funds transfer to the account nominated on Our Invoice, or by any other method We approve in writing. We will never change Our bank account details by email alone; You should verify any request to change payment details by telephoning Us on Our published number before making payment.

3.0 PRICES

3.1Account holding customers will be provided with a price list for the Goods. Price lists may be updated from time to time; an updated price list does not affect any Order and Pricing Confirmation already issued. Any recommended retail price is a recommendation only, and You are free to set Your own resale prices.

3.2Quotations are valid for thirty (30) days from their date unless stated otherwise. The price for Goods under a Contract is the price stated in the Order and Pricing Confirmation and, subject to clause 3.3, is fixed for that Contract.

3.3For imported Goods or Goods with imported components, if between the date of the Order and Pricing Confirmation and the date of dispatch there is a change in exchange rates, customs duty, or international freight or insurance charges that increases Our cost of supplying the Goods by more than five per cent (5%), We may, by written notice before dispatch, adjust the price to reflect only that increase. You may, within five (5) Business Days after receiving such a notice, cancel the affected Goods by written notice without charge, and We will refund any amount You have paid for them.

3.4If any amount is not paid by its due date, We may charge interest on the overdue amount from the due date until the date of payment, calculated daily, at the rate prescribed from time to time for interest on judgment debts under section 101 of the Civil Procedure Act 2005 (NSW). This interest is in addition to Our other rights under these Conditions.

3.5If supply of the Goods is suspended or delayed because of Your act or omission (including Your instructions, lack of instructions, or failure to provide required information, approvals, drawings or free-issue parts), You must pay the reasonable additional costs We incur as a result, including reasonable storage costs, and We are not liable for any Loss You suffer because of that delay.

4.0 DELIVERY, TRANSPORT AND RISK

4.1Unless otherwise agreed in the Order and Pricing Confirmation, Goods are supplied ex Our premises at Brookvale NSW. For export orders, the delivery term is FCA Brookvale NSW (Incoterms® 2020) unless a different Incoterm is stated in the Order and Pricing Confirmation.

4.2Unless You instruct otherwise, We will arrange transport on Your behalf, and the cost of freight will be added to Your Invoice. Free Into Store does not apply. If You request a means of transport other than that normally used by Us, You must pay any additional costs. If, within seven (7) days after the Goods are ready for dispatch, We are unable to transport the Goods by the means You have chosen, We may, after notifying You, transport them by another reasonable means at a comparable cost.

4.3Risk in the Goods passes to You when the Goods are collected by You or Your agent, or are handed to the carrier for transport to You (whichever occurs first). Delivery occurs at the same time. Title passes in accordance with clause 6, separately from risk.

4.4Dispatch or delivery dates stated in an Order and Pricing Confirmation are estimates only. We will use reasonable endeavours to meet them and will tell You promptly if We expect a material delay. Subject to Non-Excludable Rights, We are not liable for Loss resulting from late delivery. However, if Goods have not been dispatched within thirty (30) days after the estimated dispatch date for a reason other than Your act or omission or a Force Majeure Event, You may cancel the undelivered Goods by written notice without charge and We will refund any amount paid for them.

4.5If no dispatch date is stated, We will supply the Goods as soon as reasonably practicable after acceptance of the Purchase Order and manufacture of the Goods. We may deliver Goods by instalments, and each instalment may be invoiced separately.

4.6If You fail to collect or accept delivery of Goods within fourteen (14) days after We notify You that they are ready, We may invoice You for the Goods and charge reasonable storage costs from the end of that period.

5.0 GST AND OTHER TAXES

5.1Unless expressly stated otherwise, all prices and other amounts payable under these Conditions are exclusive of GST. If GST is payable on a supply made under these Conditions, You must pay Us an additional amount equal to the GST payable on that supply, at the same time as the consideration for the supply is payable. We will issue a tax invoice that complies with the GST Act.

5.2Unless stated otherwise in the Order and Pricing Confirmation, prices exclude any import duties, taxes and charges levied in the country of destination for Goods supplied outside Australia, which are Your responsibility. If You claim an exemption from any duty or tax, You must provide Us with the appropriate evidence of exemption before dispatch.

6.0 RETENTION OF TITLE

6.1Title to and property in the Goods remains with Kelco until You have paid in full the price of those Goods and all other Amounts Outstanding. Until then (Goods in that state being “Unpaid Goods”):

(a)You hold the Unpaid Goods as bailee for Kelco and owe Kelco fiduciary duties in respect of them;

(b)You must store the Unpaid Goods so that they are clearly identifiable as Kelco’s property, keep them in good condition, and insure them for their full replacement value;

(c)You must not sell, charge or otherwise deal with the Unpaid Goods other than by sale in the ordinary course of Your business; and

(d)if You sell Unpaid Goods, You do so as Kelco’s fiduciary, and You hold the proceeds of sale on trust for Kelco to the extent of the Amounts Outstanding, and must keep them separate and account to Kelco for them on demand.

6.2If a Default Event occurs, Kelco may, subject to clause 12.4, recover possession of any Unpaid Goods. For that purpose, You grant Kelco and its authorised agents an irrevocable licence to enter, at reasonable times and on reasonable notice where practicable, any premises where Unpaid Goods are reasonably believed to be stored, and to remove them. Kelco will take reasonable care to avoid damage to the premises and will credit to Your account the proceeds of any resale of recovered Goods, less its reasonable costs of recovery and resale.

7.0 INSPECTION, CLAIMS AND RETURNS

7.1You must inspect the Goods promptly after delivery. Any claim for shortage, damage in transit, or supply of Goods that do not match the Order and Pricing Confirmation must be notified to Us in writing within seven (7) days after delivery. If You do not do so, the Goods are taken to have been delivered in the correct quantity, undamaged and as ordered. This clause 7.1 does not apply to defects that were not reasonably apparent on inspection, and does not limit Non-Excludable Rights.

7.2Any other claim regarding the Goods (including for a defect) must be notified to Us in writing as soon as reasonably practicable after You become aware of it. The notice should include the product code, date code or serial number, Invoice number, a description of the problem and details of the application (including process media, temperature, pressure and electrical supply).

7.3You must give Us a reasonable opportunity to inspect and test the Goods that are the subject of a claim, and should not dispose of, repair or modify them before then without Our written consent (which We will not unreasonably withhold). If Goods are disposed of, repaired or modified without consent, We may take that into account in assessing the claim, to the extent it prevents Us from properly assessing it.

7.4Goods may be returned only with Our prior written authorisation in the form of a Return Goods Authorisation (RGA). Returned Goods must be suitably packed and accompanied by the RGA number and a copy of the relevant Invoice or delivery docket.

7.5Where Goods are returned because of Our error, a valid warranty claim or a failure to comply with a Consumer Guarantee, We will bear the reasonable cost of return freight. Otherwise, return freight is at Your cost.

7.6Goods returned without an RGA may, at Our option, be re-consigned to You freight collect, and We may charge a handling fee (currently AU$50.00 plus GST) reflecting Our reasonable costs of processing the unauthorised return. This clause 7.6 does not apply to a valid claim made under Non-Excludable Rights.

7.7We are not obliged to accept the return of correctly supplied Goods because You have changed Your mind. If We agree to do so, the Goods must be current standard stock, unused, undamaged and in their original packaging, returned within thirty (30) days after delivery, and a restocking fee of ten per cent (10%) of the price of the returned Goods will apply. Non-standard, custom or made-to-order Goods cannot be returned for change of mind.

8.0 SPECIFICATIONS AND PRODUCT SELECTION

8.1The Goods will conform with the specifications in Kelco’s technical data sheet for those Goods current at the date of the Order and Pricing Confirmation, or with any special specification agreed in writing for a particular order, subject to normal manufacturing tolerances.

8.2Brochures, photographs, illustrations, catalogues and other marketing material are provided for general information only. While We take reasonable care to ensure they are accurate, they are indicative and are not part of the specification of the Goods unless expressly incorporated into the Order and Pricing Confirmation.

8.3You are responsible for selecting Goods suitable for Your application, including confirming the compatibility of all wetted materials with the process media, and the suitability of the Goods for the operating temperature, pressure, flow, electrical supply and installation environment. Any technical advice, product recommendation or chemical compatibility information provided by Kelco is given in good faith on the basis of the information You provide and generally available published data. Chemical compatibility can be affected by concentration, temperature, mixtures and other conditions, and You should verify suitability (including by trial where appropriate) before use. This clause 8.3 does not limit Non-Excludable Rights.

8.4Electrical Goods must be installed and connected by an appropriately licensed person in accordance with Kelco’s installation instructions and all applicable laws and standards, including AS/NZS 3000.

8.5We may make changes to the design, materials or method of manufacture of the Goods provided the changes do not adversely affect their form, fit, function, performance or compliance with any agreed specification. We will notify You before supply if a change is likely to be material to You.

8.6If any component of the Goods becomes unobtainable, or obtainable only with unreasonable difficulty or at excessive cost, We may, with Your consent (which You will not unreasonably withhold), substitute a component of equal or better quality and performance. If no suitable substitute is available, either party may cancel the affected Goods by written notice without liability, and We will refund any amount You have paid for them.

9.0 WARRANTY AND LIMITATION OF LIABILITY

9.1In addition to Non-Excludable Rights, Kelco warrants the Goods against defects in materials and workmanship on the terms of the Kelco Warranty published at www.kelco.com.au/en/information/warranty (or provided on request). The benefits of that warranty are in addition to other rights and remedies You may have under a law in relation to the Goods. The express warranty does not cover defects caused by incorrect selection, installation, maintenance or operation contrary to Kelco’s instructions, chemical attack by incompatible media, accident, misuse, or unauthorised modification or repair. Kelco may issue specific warranty terms for particular Goods, which will be stated in the Order and Pricing Confirmation or the product documentation.

9.2Except for the express warranty in clause 9.1 and Non-Excludable Rights, and to the extent permitted by law, all other terms, conditions, warranties and guarantees, whether express or implied by statute, common law or otherwise, are excluded.

9.3Where the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, and to the extent permitted by section 64A of the ACL, Kelco’s liability for a failure to comply with a Consumer Guarantee (other than a guarantee under sections 51, 52 or 53 of the ACL) is limited, at Kelco’s option, to: (a) replacing the Goods or supplying equivalent goods; (b) repairing the Goods; (c) paying the cost of replacing the Goods or acquiring equivalent goods; or (d) paying the cost of having the Goods repaired.

9.4Subject to Non-Excludable Rights and clause 9.3, Kelco’s total aggregate liability to You for any Loss arising out of or in connection with a Contract or the Goods, whether in contract, tort (including negligence), under statute or otherwise, is limited to the price paid by You for the Goods that are the subject of the claim. This clause 9.4 does not limit Kelco’s liability for death or personal injury caused by its negligence, or for fraud.

9.5Subject to Non-Excludable Rights, neither party is liable to the other for any Consequential Loss arising out of or in connection with a Contract or the Goods, whether in contract, tort (including negligence), under statute or otherwise. This clause 9.5 does not limit Your obligation to pay the price of the Goods, interest and costs under these Conditions.

9.6Kelco’s liability is reduced to the extent any Loss is caused or contributed to by You, Your personnel, or the failure of a third party’s equipment or systems.

10.0 INTELLECTUAL PROPERTY

10.1All Intellectual Property in the Goods and in all designs, drawings, firmware, software, data sheets and other materials created or supplied by or on behalf of Kelco remains the property of Kelco or its licensors.

10.2Kelco grants You a non-exclusive, non-transferable licence to use, install and resell the Goods, and to use the accompanying documentation for those purposes. You must not copy, reproduce, reverse engineer, decompile or modify any firmware, design or documentation supplied by Kelco, or permit anyone else to do so, except as permitted by law or with Kelco’s prior written consent.

10.3You may use Kelco’s name and trade marks to identify and promote the resale of genuine Kelco Goods, but must not remove or alter any Kelco markings on the Goods.

10.4Where Goods are manufactured to Your design, drawings or specifications, You warrant that their use by Kelco will not infringe any third party’s Intellectual Property, and You indemnify Kelco against any Loss arising from a claim that it does, except to the extent the Loss is caused by Kelco.

11.0 CANCELLATION BY YOU

11.1Except as provided in clauses 3.3, 4.4, 8.6 and 14.3, You may cancel all or part of an accepted Purchase Order only with Kelco’s prior written consent. Kelco will not unreasonably withhold consent to cancellation of standard stock Goods that have not been dispatched. Any request for cancellation must be made in writing.

11.2If Kelco consents to a cancellation, You must pay Kelco’s reasonable costs arising directly from it, being: (a) for standard stock Goods, a restocking fee of ten per cent (10%) of the price of the cancelled Goods; and (b) for non-standard or made-to-order Goods, the proportion of the order price corresponding to the work completed at the date of cancellation, plus the cost of any materials or components purchased specifically for the order that cannot reasonably be used elsewhere or returned, less any amount Kelco recovers for them. The amount payable will not exceed the price of the cancelled Goods.

12.0 DEFAULT AND TERMINATION

12.1A Default Event occurs if: (a) You fail to pay any amount by its due date and the amount remains unpaid seven (7) days after We give You written notice of the non-payment; (b) You commit any other material breach of these Conditions that is not capable of remedy, or that is not remedied within fourteen (14) days after We give You written notice of the breach; or (c) an Insolvency Event occurs.

12.2If a Default Event occurs, We may, without prejudice to any other rights, do any one or more of the following: (a) suspend further deliveries until the Default Event is remedied; (b) require payment in advance for any further Goods; (c) recover Unpaid Goods under clause 6.2; (d) declare all Amounts Outstanding immediately due and payable; and (e) terminate any Contract, or the undelivered part of any Contract, by written notice.

12.3If We terminate a Contract under clause 12.2, We will refund or credit any amount You have paid for Goods not delivered, less any amount You owe Us, and You must pay for Goods already delivered and any amount payable under clause 11.2 in respect of non-standard Goods in progress.

12.4Kelco’s rights under these Conditions arising because of an Insolvency Event, or under clauses 6.2 or 12.2, may only be exercised to the extent permitted by law, including any stay on the enforcement of rights under the Corporations Act 2001 (Cth) (including sections 415D, 434J and 451E).

13.0 PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)

13.1You acknowledge and agree that these Conditions create a security interest in favour of Kelco in all Goods supplied by Kelco to You (now or in the future) and their proceeds, which secures payment of all Amounts Outstanding. To the extent it secures payment of the price of Goods, the security interest is a purchase money security interest.

13.2You consent to Kelco registering a financing statement or financing change statement on the Personal Property Securities Register in respect of that security interest. You must promptly sign any document and provide any information Kelco reasonably requires to register, perfect, maintain or enforce its security interest, and must give Kelco at least seven (7) days’ prior written notice of any change to Your name, ABN, ACN or address.

13.3You must not register, or permit to be registered, a financing change statement in relation to Kelco’s security interest without Kelco’s prior written consent.

13.4To the extent permitted by section 115 of the PPSA, You and Kelco agree that the following provisions of the PPSA do not apply to the enforcement of Kelco’s security interest: sections 95, 96, 117, 118, 120, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143.

13.5You waive Your right under section 157 of the PPSA to receive a verification statement. You and Kelco agree, for the purposes of section 275(6) of the PPSA, not to disclose information of the kind referred to in section 275(1), except as permitted by section 275(7).

14.0 FORCE MAJEURE

14.1A Force Majeure Event means any circumstance beyond the reasonable control of the affected party, including strike, lock-out or labour dispute, act of God, fire, flood, storm, epidemic or pandemic, war, terrorism, cyber-attack, failure of public utilities or telecommunications, shortage of raw materials or components, failure or delay of suppliers or carriers, breakdown of plant or machinery, and any action of a government or port authority.

14.2Neither party is liable for any delay or failure to perform its obligations (other than an obligation to pay money) to the extent caused by a Force Majeure Event, provided it notifies the other party promptly and uses reasonable endeavours to minimise the effect. The affected obligations are suspended for the duration of the Force Majeure Event.

14.3If a Force Majeure Event continues for more than sixty (60) days, either party may cancel the affected Goods by written notice without liability, and Kelco will refund any amount paid for Goods not delivered.

15.0 PRIVACY

15.1Kelco collects, uses and discloses personal information (including information about Your directors, guarantors and personnel) for the purposes of processing orders, assessing and managing credit, debt recovery and communicating with You about Kelco products, and handles that information in accordance with the Privacy Act 1988 (Cth) to the extent it applies.

16.0 GENERAL

16.1Amendment: Kelco may amend these Conditions by giving You at least thirty (30) days’ written notice (including by email). An amendment applies only to Purchase Orders accepted after the date it takes effect and does not affect any existing Contract. Otherwise, a Contract may only be varied in writing signed by both parties.

16.2Set-off: All amounts must be paid without set-off, counterclaim or deduction, except for credit notes issued by Kelco, amounts agreed in writing, or as required by law.

16.3Assignment: Neither party may assign or novate any of its rights or obligations under a Contract without the prior written consent of the other party, which must not be unreasonably withheld.

16.4Waiver: A failure or delay by either party to exercise a right is not a waiver of that right. A waiver of a breach is not a waiver of any other or further breach.

16.5Severance: If any provision of a Contract is void, unenforceable or unfair, that provision (or the relevant part of it) is severed and the remaining provisions continue in full force.

16.6Entire agreement: Each Contract (comprising these Conditions, the Order and Pricing Confirmation and the details in Your Purchase Order to the extent accepted by Us) is the entire agreement between the parties for the supply of the relevant Goods. Nothing in this clause excludes liability for any representation that cannot lawfully be excluded.

16.7Costs of recovery: If You fail to pay an amount when due, You must pay Kelco’s reasonable costs of recovering it, including reasonable mercantile agent fees and legal costs, to the extent permitted by law. If Kelco breaches a Contract, Kelco is likewise liable for Your reasonable costs of enforcing it, subject to clause 9.

16.8Confidentiality: Each party must keep confidential any non-public information provided by the other party in connection with a Contract (including pricing and technical information), except as required by law or for the purposes of obtaining professional legal, financial or taxation advice. This clause does not apply to these Conditions themselves.

16.9Notices: Notices under these Conditions must be in writing and may be given by hand, post or email to the addresses last notified by the receiving party (and for Kelco, to [email protected]). An email notice is taken to be received at the time determined under the Electronic Transactions Act 2000 (NSW).

16.10Disputes: Before commencing court proceedings (other than for urgent interlocutory relief or the recovery of a debt), a party must give the other written notice of the dispute, and senior representatives of both parties must attempt in good faith to resolve it within twenty (20) Business Days after that notice.

16.11Governing law: Each Contract is governed by the laws of New South Wales, Australia. Each party submits to the non-exclusive jurisdiction of the courts of New South Wales and the courts competent to hear appeals from them. The United Nations Convention on Contracts for the International Sale of Goods (as given effect by the Sale of Goods (Vienna Convention) Act 1986 (NSW)) does not apply to any Contract.