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Kirby Conditions of Sale
KIRBY – CONDITIONS OF SALE
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1.1 The following terms shall have the following meanings unless the context shall require otherwise:-
“ACL” means the Australian Consumer Law as set out in the CCA;
“CCA” means the Competition and Consumer Act 2010 (Cth).
“Consumer” means a Buyer that is a consumer (as that term is defined in the ACL) in respect of the particular supply of Goods;
“Consumer Guarantees” means the guarantees relating to the supply of goods and services to consumers provided by Division 1 of Part 3-2 of the ACL;
“Buyer" means the purchaser of any Goods and/or hirer of the Cylinder(s) or Stillages and in the case of a company shall include its successors, agents and permitted assigns and in the case of an individual shall include that individual's administrators and executors;
“Conditions” means these terms and conditions of sale and hire, the general warranty conditions of Heatcraft, any other conditions provided on Heatcraft’s website and any agreed written variations. If there is any conflict, then in the absence of an express written variation from Heatcraft, the warranty provided on the Heatcraft website from to time to time shall apply;
“Cylinder” means the gas cylinder which may be supplied to the Buyer upon purchase of any Gas2Go® or other Goods and includes Stillages and other cylinder transportation devices;
“Cylinder Service Charge” has the meaning set out in clause 14.1(a);
“Cylinder Service Rate Charge Schedule” means the schedule of fees for the Cylinder service which are available upon request from any Heatcraft branch or by contacting Heatcraft on [Phone 13 23 50];
“Default” means a default under clause 17 of these Conditions;
“Gas2Go Club” means membership based club which entitles Gas2Go Members to participate in Heatcraft’s Gas2Go gas management system under through which Heatcraft provides the Gas2Go Goods to Gas2Go Members.
“Gas2Go Goods” means the goods provided to Gas2Go Members.
“Gas2Go Members” means a Buyer who is accepted by Heatcraft as a current member of the Gas2Go Club pursuant to Heatcraft’s Gas2Go Club Conditions.
“Gas2Go Club Membership Conditions” means the terms and conditions of membership of the Gas2Go Club.
"Goods" means any goods purchased by the Buyer from Heatcraft from time to time and includes any Non Standard Goods;
“GST” means any tax including any additional tax imposed on the supply of or payment for Goods which is imposed or assessed under A New Tax System (Goods and Services Tax) Act 1999 (Cth), and all other related and ancillary legislation, which is excluded from the Price;
"Heatcraft" means Heatcraft Australia Pty Ltd (ABN 67 000 056 717) and its successors and assigns;
“Non Standard Goods” means any goods that are purchased by the Buyer through a Non Standard Goods Order;
“Non Standard Goods Order” means Goods made or acquired by Heatcraft, at the specific request of the Buyer, and which are not standard goods of Heatcraft;
“Order” means an invitation to treat by the Buyer for the supply of Goods;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“PPSR” means the Personal Property Securities Register established pursuant to the PPSA;
"Price" is the amount payable by the Buyer for the Goods exclusive of any other sum payable by the Buyer;
“Secured Property” means all Goods that are supplied to the Customer by Heatcraft (whether now or in the future);
“Security Interest” means an interest in personal property provided for by a transaction that, in substance, secures payment of money or performance of an obligation (without regard to the form of the transaction or the identity of the person who has title to the property), and also includes a transaction which the PPSA treats as a security interest whether or not the transaction concerned, in substance, secures payment or performance of an obligation.
"Specified Period" means the period of thirty (30) days calculated from:
(a) for the purposes of clause 3.2, the quotation date; and
(b) for the purposes of clauses 3.4 and 3.5, the sales invoice date, or such other further period as Heatcraft may from time to time agree in writing.
“Stillage” means the stillage or metal pallet which may be supplied to the Buyer upon purchase of any Gas2Go® or other Goods;
1.2 If there shall be more than one (1) Buyer these Conditions shall bind each of them jointly and severally.
2. APPLICATION OF THE TERMS & CONDITIONS
2.1 Entire Agreement The entire agreement between Heatcraft and the Buyer for the purchase of the Goods by the Buyer from Heatcraft is:
(c) these Conditions; and
(d) any other terms and conditions which are imposed by law and cannot be excluded.
2.2 Variation. Heatcraft may amend or vary these terms and conditions by giving the Buyer 14 day’s written notice.
2.3 Acceptance. Heatcraft’s Acceptance of an Order from a Buyer constitutes acceptance of these Conditions (as amended from time to time) by the Buyer, and (without limitation) these Conditions apply to all goods and services provided by Heatcraft whether arising from an Order received from the Buyer, or resulting from a quotation by Heatcraft, or arising from oral acceptance by Heatcraft of repeat or future orders for the same and/or similar Goods and shall terminate, cancel and supersede any previous written or oral agreements and understandings entered into between the Buyer and Heatcraft.
3. PRICE & PAYMENT
3.1 The Price payable by the Buyer for the Goods shall be that as published from time to time by Heatcraft, including (without limitation) on its website, in its price lists or as quoted or advised by Heatcraft upon receipt of an Order for Goods from the Buyer. For the avoidance of doubt, in the absence of specific prices of any Goods as provided by Heatcraft, the prices of the Goods in Heatcraft’s published price list at the time of delivery shall apply.
3.2 Subject to clause 3.3, quotations are valid for the Specified Period, after which they may be subject to change without notice. Heatcraft may at any time alter its price in respect of future orders.
3.3 If, between the date of the Order from the Buyer and delivery of the Goods, there is an increase in the cost of the supply of the Goods by Heatcraft which are due to reasons beyond Heatcraft’s control, then Heatcraft will be entitled to increase the Price of the Goods and/or Cylinder Service Charge to compensate Heatcraft for the increase, such increase to be paid by the Buyer.
3.4 The Buyer shall pay the full Price (plus GST) and all other sums owing (including the Cylinder Service Charge) immediately on delivery of the Goods provided except when the Buyer has completed an "Application for Credit" approved in writing by Heatcraft, in which case the Buyer shall have until the end of the Specified Period to pay.
3.5 If the Buyer has not used their Heatcraft credit account for more than 24 months, the credit account will be automatically deactivated and the Buyer may re-apply to Heatcraft for a Heatcraft credit account. The Buyer agrees that Heatcraft will not be responsible for any loss or damage that may be suffered by the Buyer as a result of such deactivation.
3.6 In the event that the Buyer fails to pay the Price (plus GST) or any other sum payable (including the Cylinder Service Charge) within the Specified Period:
(a) Heatcraft may at its option require cash on delivery and/or stop the supply of any further Goods or Cylinders to the Buyer; and
(b) the Buyer shall pay to Heatcraft interest on the Price (plus GST) and all other sums (including the Cylinder Service Charge) calculated daily at a rate 3% higher than the National Australia Bank’s overdraft rate, for amounts exceeding $100,000, from time to time, on any monies then due to Heatcraft from the date the Price is due to be paid to Heatcraft until such monies are paid in full.
3.7 The Buyer agrees that a statement of indebtedness from Heatcraft to them is binding and conclusive, except in the event of manifest error.
4. DISCOUNTS AND REBATES
Heatcraft reserves the right to cancel, or at its option, suspend all trade discounts or rebates given to the Buyer, in the event that the Buyer fails to comply with any of these Conditions.
5.1 Heatcraft shall have no obligation to accept any Order from the Buyer.
5.2 The Buyer also agrees that:
(a) each Order it places shall be deemed to include a representation that it is solvent and able to pay off its debts as and when they fall due;
(b) when any Order is placed, the Buyer shall inform Heatcraft of any facts which might reasonably affect any decision to accept the Order and/or grant credit. Any failure to do so shall be deemed to create an inequality of bargaining position, the taking of an unfair advantage of Heatcraft and to be unconscionable, misleading and deceptive;
(c) from the time of placing the Order, the Buyer is obliged to accept and pay for the Goods in accordance with these Conditions and a cancellation of the Order or change on the part of the Buyer as to shall not discharge this obligation to accept the Goods and make payment;
(d) Heatcraft shall use its reasonable endeavours to ensure that the Goods are available and provided to the Buyer within the time frame requested by the Buyer, but shall not be liable for any loss or damage caused by any delay. The Buyer shall not be entitled to reject the Goods due to any such delay; and
(e) without prejudice to any other rights that Heatcraft may have in these Conditions, the Buyer shall indemnify Heatcraft for any loss, damage, or expense incurred by Heatcraft should the Buyer cancel or refuse to accept any Order or part of any Order.
5.3 The Buyer acknowledges that if the Buyer places a Non Standard Goods Order with Heatcraft, the Buyer, at Heatcraft’s discretion, must pay up to a 50% deposit at the time of the Non-Standard Goods Order, which (for the avoidance of doubt) is a non-refundable deposit.
5.4 The Buyer further acknowledges that any Non Standard Goods Order(s) cannot be cancelled once the Non Standard Goods Order(s) has been placed with Heatcraft and to the fullest extent permitted by law the Non Standard Goods cannot be returned to Heatcraft at any stage.
6.1 Heatcraft accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion without liability, at the Buyer’s cost and risk in all things.
6.2 All delivery dates referred to by Heatcraft are given in good faith. Heatcraft shall use its reasonable endeavours to deliver the Goods to the Buyer on or before such delivery date. However, such delivery dates shall not be binding upon Heatcraft.
6.3 Heatcraft shall not be liable for any delay, failure, or inability to deliver, or for any consequential loss or cost of any property of the Buyer including in particular any food or product loss to the extent permitted by law.
6.4 Heatcraft may impose a charge for frustrated delivery calculated to cover Heatcraft’s cost of attempts.
6.5 The Buyer may not reject Goods on the basis of partial or late delivery.
6.6 Unless agreed in writing to the contrary, Heatcraft reserves the right to make part deliveries of any Order. A failure by Heatcraft to make delivery of the entire Order shall not invalidate or vary the Buyer’s Order. If Heatcraft only delivers part of the Goods which are ordered by the Buyer, Heatcraft is still be entitled to invoice the Buyer for those Goods delivered.
6.7 The Buyer shall notify Heatcraft in writing of any shortages in quantity of any Goods delivered or of any defect in any such Goods within seven (7) days of delivery and after that time the Buyer will not be entitled to make any claim on Heatcraft relating to shortages or defects in quality.
6.8 If the Buyer requests Proof of Delivery (“POD”) in writing to Heatcraft:
(a) within 120 days of the despatch date of the Goods, the POD will be supplied by Heatcraft free of charge; and
(b) beyond 120 days of the despatch date of the Goods, Heatcraft will charge a reasonable administration fee which must be paid by the Buyer upon delivery of the proof of delivery.
7.1 Subject to clause 7.2, in the event that Heatcraft agrees in writing to accept return of any Goods for credit, Heatcraft will not be responsible for transport costs (except where due to error of supply) and will at its discretion, charge a re-stocking fee not greater than 20% of the Price.
7.2 Notwithstanding any other term in these Conditions, Heatcraft will honour all of its obligations under the ACL and nothing in these Conditions restricts, limits or modifies the Buyer's rights or remedies against Heatcraft for failure of a Consumer Guarantee under the ACL.
8. RETENTION OF TITLE AND RISK AND SECURITY/CHARGES
8.1 Title and risk in the Goods shall pass to the Buyer on delivery but the equitable title in the Goods shall not pass to the Buyer until full payment is received by Heatcraft for the Goods and any other goods sold to the Buyer by Heatcraft and until all cheques and other instruments are honoured or met in full.
8.2 The risk in the Goods shall pass to the Buyer immediately upon the Buyer or Buyer’s agent taking possession of the Goods. The Buyer shall in all cases be responsible for the payment of any insurance in respect of the Goods and in the event that Heatcraft shall contract for any such insurance the Buyer shall reimburse the cost of the relevant insurance premium to Heatcraft.
8.3 The Buyer may sell or deal in the ordinary course of business with the Goods and with the interest of Heatcraft in the Goods and may for those purposes part with possession of the Goods but the proceeds of any such sale or dealing must be held by the Buyer separately on trust for Heatcraft and appropriated solely for the payment of all sums owing to Heatcraft.
8.4 Whilst Heatcraft retains the legal and equitable title in the Goods the Buyer shall ensure that the Goods are clearly identifiable as the exclusive property of Heatcraft wherever the Goods are stored.
8.5 The Buyer must not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Heatcraft.
8.6 The Buyer hereby irrevocably gives to Heatcraft, its agents and servants, leave and licence without the necessity of giving any notice to enter on and into any premises occupied by the Buyer to search for and remove any of the Goods supplied to or in which Heatcraft has property as aforesaid without in any way being liable to the Buyer or any person or company claiming through the Buyer, and if the Goods or any of them are wholly or partially attached to or incorporated in any other goods, Heatcraft may sever the attachment in any way whatsoever as may be necessary to remove the Goods.
8.7 The Buyer will be responsible for Heatcraft’s costs and expenses in exercising its rights under clause 8.6.
8.8 The Buyer agrees that where the Goods have been retaken into the possession of Heatcraft, Heatcraft has the absolute right to sell or deal with the Goods, and if necessary sell the Goods with the trademark or name of the Buyer on those Goods, and the Buyer grants an irrevocable licence to Heatcraft to do so and do all things necessary to sell the Goods bearing the name of trademark of the Buyer.
8.9 Heatcraft may issue proceedings to recover all outstanding indebtedness to Heatcraft in respect of the Goods or any other amounts owing to Heatcraft notwithstanding that ownership may have passed to the Buyer.
8.10 Heatcraft and the Buyer agree that any credit contract between them shall be terminated immediately on the happening of any Default. Until full payment is received by Heatcraft the Buyer shall be deemed to be a bailee of the Goods for and on behalf of Heatcraft and Heatcraft shall be entitled to all the rights and remedies of a bailor.
9. INTERACTION WITH GAS2GO CLUB MEMBERSHIP CONDITIONS
9.1 Where the Buyer is a member of the Gas2Go Club the Buyer acknowledges that it is also bound by the Gas2Go Membership Conditions.
9.2 To the extent of any inconsistency between the Gas2Go Membership Conditions and these Conditions, the terms of the Gas2Go Membership Conditions shall prevail.
10.1 The Buyer acknowledges that pursuant to these Conditions they grant to Heatcraft a Security Interest in the Secured Property and, for avoidance of doubt, the proceeds of sale of the Secured Property for the purposes of the PPSA.
10.2 The Buyer consents to Heatcraft effecting a registration on the PPSR (in any manner Heatcraft considers appropriate) in relation to the Security Interest arising under or in connection with these Conditions and the Buyer agrees to provide all assistance required by Heatcraft to facilitate this.
10.3 The Buyer acknowledges and agrees that in relation to the part of the Secured Property that is inventory, the Buyer will not allow any Security Interest to arise in respect of that Secured Property unless Heatcraft has perfected its Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.
10.4 If Chapter 4 of the PPSA applies to the enforcement of the Security Interest arising under or in connection with these Conditions, the Buyer agrees:
(a) to the extent that section 115(1) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 95 to the extent that it requires Heatcraft to give a notice to the Customer, section 96, section 121(4), section 125 (obligation to dispose of or retain collateral), section 130 to the extent that it requires the Secured Party to give notice to the Customer, paragraph 132(3)(d), subsection 132(4), section 142 and section 143 (reinstatement of security agreement); and
(b) to the extent that section 115(7) of the PPSA allows this, the following provisions of the PPSA will not apply to the enforcement of that Security Interest: section 127, section 129(2) and (3), section 132, section 134(2), section 135, section 136(3), (4) and (5) and section 137.
10.5 If the Buyer makes payment to Heatcraft at any time whether in connection with these Conditions or otherwise, Heatcraft may, at its absolute discretion, apply that payment in any manner it sees fit.
10.6 The Buyer agrees to immediately notify Heatcraft of any changes to its name or address (as specified in these Conditions).
10.7 The Buyer agrees to do anything Heatcraft requests the Buyer to do (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed):
(a) to provide more effective security over the Secured Property;
(b) to register in respect of a Security Interest constituted by these Conditions at any time;
(c) to enable Heatcraft to exercise its rights in connection with the Secured Property; and
(d) to show Heatcraft whether the Buyer has complied with these Conditions.
10.8 The Buyer shall pay on demand by Heatcraft any losses arising from, and any costs and expenses incurred in connection with, any action taken by Heatcraft under or in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA.
10.9 Any notices or documents which are required or permitted to be given to Heatcraft for the purposes of the PPSA must be given in accordance with the PPSA.
10.10 The Buyer waives the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
11.1 Each party agrees not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in the circumstances required by sections 275(7)(b) to (e) of the PPSA. The Buyer agrees that it will only authorise the disclosure of information under section 275(7)(c) or request information under section 275(7)(d), if Heatcraft approves.
11.2 Nothing in clause 11.1 will prevent any disclosure by Heatcraft that it believes is necessary to comply with its other obligations under the PPSA or under any other applicable law.
11.3 To the extent that it is not inconsistent with clauses 11.1 or 11.2 above constituting a "confidentiality agreement" for the purposes of section 275(6)(a) of the PPSA, the Buyer agrees that Heatcraft may disclose information of the kind mentioned in section 275(1) of the PPSA to the extent that Heatcraft is not doing so in response to a request by an "interested person" (as defined in section 275(9) of the PPSA) pursuant to section 275(1) of the PPSA.
12. BUYER'S WARRANTY
12.1 The Buyer warrants and agrees that the Buyer is acquiring the Goods for other than personal, domestic, household use or consumption and the purpose of:
re-supply or using them up or transforming them in trade or commerce in the course of:
i) a process of production or manufacture; or
ii) repairing or treating other goods or fixtures on land;
and is therefore not a “consumer” as defined by the CCA. This clause 12.1 does not apply if clause 13.9 of these Conditions applies.
12.2 The Buyer warrants and acknowledges that this is not a supply by description.
12.3 The Buyer warrants and acknowledges that:
(a) it has not relied on any representation made by Heatcraft or any of its employees which has not been stated in these Conditions or on any description or illustration or specification contained in any document produced by Heatcraft or supplied directly or indirectly to the Buyer; and
(b) it does not rely upon and it is unreasonable for it to rely upon Heatcraft’s skill or judgment as to whether the goods supplied are reasonably fit for any purpose for which they are being acquired.
13. EXCLUSION OF LIABILITY AND INDEMNITY
(A) Implied Terms
13.1 Heatcraft acknowledges that under applicable State, Territory and Commonwealth law(s) (including, without limitation, the CCA), certain statutory guarantees and warranties (including, without limitation, the statutory guarantees under the CCA) may be implied into these Conditions and cannot be excluded by law (“Non- Excluded Guarantees”).
13.2 Heatcraft acknowledges that nothing in these Conditions purports to modify or exclude the Non-Excluded Guarantees.
13.3 Except as expressly set out in these Conditions or in respect of the Non-Excluded Guarantees, Heatcraft makes no other warranties or other representations under any contract with the Buyer or these Conditions. Heatcraft’s liability in respect of these warranties is limited to the fullest extent permitted by law.
13.4 Subject to this clause 13 and so far as may be permitted by law the liability of Heatcraft and its employees and/or agents for a breach of a Non-Excluded Guarantee in relation to the supply of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption shall, at Heatcraft's discretion, be limited to, as the Buyer’s exclusive remedy:
(a) the replacement of the goods or the supply of equivalent goods; or
(b) the repair of the goods; or
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.
(C) Exclusion of Liability
13.5 Subject to this clause 13 and to the extent permitted by law, Heatcraft, its employees and/or agents, shall not be liable for any loss or damage, to the Buyer (including any consequential loss or damage, which includes, without limitation, loss of profits and loss of revenue) of any kind whatsoever even if due to the negligence of Heatcraft, its employees and/or agents. The exclusion of liability set out in this clause 13.5 also extends to the loss or damage that was not reasonably foreseeable that the Buyer would suffer as a result of Heatcraft’s failure to comply with the Non-Excluded Guarantees.
13.6 Subject to clauses 13.1 - 13.3, in respect of Goods or performance of the contract, the Buyer shall indemnify Heatcraft against any action suit demand and proceeding in relation to any loss damage, cost and/or expense directly or indirectly incurred or suffered by Heatcraft caused by or contributed to by any of the following:
(a) as a result of any defect, malfunction or stoppage of the Goods;
(b) Heatcraft complying with any instruction of the Buyer about the Goods;
(c) any act or omission occurring after the Goods have left the control of Heatcraft;
(d) the Buyer's, or any third party associated with the Buyer, failure to:
iii) adequately provide or display safety markings or safety information on or with the Goods;
iv) comply with any law about the Goods or their use (for example, their sale, marketing, labelling or marking);
v) take any reasonable precaution to bring to the attention of any potential users of the Goods any dangers associated with goods;
vi) take any reasonable precaution to detect any matters in relation to which Heatcraft may become liable in any way (for example, under the CCA);
vii) provide correct information to Heatcraft; or
viii) immediately advise Heatcraft (in writing) of any changes to the information provided to Heatcraft.
(e) the Buyer making any statement about the Goods (for example, about their performance or characteristics) without Heatcraft's approval;
(f) the use (or misuse) or operation of the Goods by the Buyer or any third party; and
(g) any negligence or breach of duty by the Buyer or any third party or any breach by the Buyer of these Conditions.
13.7 Subject to these Conditions and specifically clauses 13.1 - 13.3, the Buyer shall indemnify Heatcraft for any loss, damage or expense incurred by Heatcraft, to the maximum extent permitted by law, for any breach of these Conditions by the Buyer.
13.8 For the avoidance of doubt, any warranty given by Heatcraft in the Conditions may be varied vary depending on the Goods supplied, with such variation to be notified in writing by Heatcraft. Any warranty provided in the Conditions, may only be varied and/or modified by Heatcraft in writing.
13.9 Notwithstanding any of the above, Goods sold to consumers as defined under section 3(2) of the Australian Consumer Law (as contained in the CCA) come with guarantees that cannot be excluded under the Australian Consumer Law. If the Buyer is such a consumer:
(a) it is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable damage; and
(b) it is also permitted to have the Goods repaired or replaced if the Goods fail to be of an acceptable quality and the failure does not amount to a major failure.
This warranty against defects is given in addition to other rights and remedies of the Buyer under law.
13.10 The warranties given under these Conditions are given by Heatcraft Australia Pty Ltd (ABN 67 000 056 717), of 286 Horsley Road, Milperra NSW 2214 Australia Phone +61 2 9774 7155.
14. CYLINDER HIRE
14.1 Notwithstanding any other terms of these Conditions, if the Buyer is supplied a Cylinder (which definition includes Stillages) by Heatcraft then the Buyer agrees to be bound by the following terms and conditions:
(a) Unless otherwise agreed in writing, the Buyer must pay a periodic charge and any other associated charges, including refill protection devices or cylinder valve cap replacement charges (“Cylinder Service Charge”) for the hire of the Cylinder(s) by the Buyer at Heatcraft’s standard rates (as set out in the Cylinder Service Rate Charge Schedule) in accordance with clause 3.
(b) The period of hire shall commence on the date of delivery or collection and cease on the date upon which the Cylinder(s) are returned to Heatcraft.
(c) The Cylinder Service Charge covers Heatcraft’s reasonable costs associated with the Cylinders, including but not limited to, cost of tracking, inspecting the Cylinder prior to filling, periodic testing and routine maintenance of the Cylinder (painting and labelling).
(d) The Buyer must, at its own cost, return all Cylinders to Heatcraft as soon as they are empty. Cylinders are not deemed ‘returned’ until received by Heatcraft (or its authorised agent) at their premises and Heatcraft provides to the Buyer a written receipt, acknowledging the Cylinder’s return. For purposes of clarity and to avoid disputes regarding whether and when Cylinders were returned, no document purporting to be a receipt for any Cylinders shall be valid unless it is on a Heatcraft printed form of receipt.
(e) On receipt of each Cylinder Service Fee invoice, the Buyer is required to verify the total number of Cylinders held that is shown on the face of the invoice. Where there is any discrepancy written notification must be forwarded to Heatcraft within 14 days of receipt of the invoice, failing which the number of Cylinders stated as being held by the Buyer on the cylinder fee invoice shall be conclusive and the Buyer will be liable to Heatcraft for the amount shown on the invoice.
(f) Heatcraft may charge a deposit upon supply of the Cylinder to the Buyer on terms satisfactory to Heatcraft having regard to the nature of the transaction with the Buyer. Once the Cylinder(s) are returned to Heatcraft in a clean, safe and serviceable condition, Heatcraft will refund the deposit (or appropriate part thereof) to the Buyer.
(g) Heatcraft will have the right to charge a reasonable administrative fee for the collection of any Cylinders from the Buyer.
(h) Cylinders remain the property of Heatcraft (or its supplier) and the Buyer shall be a bailee of any Cylinders and shall not sell, offer for sale, mortgage, charge, or create any lien or encumbrance over the Cylinders.
(i) The Buyer shall not repair, modify, tamper with, or contaminate Cylinders and shall not permit the Cylinders to be filled by anyone other than Heatcraft or Heatcraft’s representatives or agents.
(j) Buyer shall be responsible for the safe use and storage of all Cylinders and Stillages and shall not use the Cylinders and Stillages for any other purpose other than as a container for gas sold or transportation of a container for gas sold by Heatcraft.
(k) The provisions of clause 14 apply to the hire of the Cylinders by the Buyer.
(l) Buyer shall be responsible for any loss or damage to the Cylinder. Compensation shall be at Heatcraft’s current replacement cost of those Cylinders as set out in Cylinder Service Charge Schedule and as varied from time to time by Heatcraft to reflect the current Cylinder replacement value with such revision published on the monthly cylinder fee invoice.
(m) Customer shall indemnify, and hold harmless Heatcraft and its agents, affiliates and employees from any and all claims arising out of or related to Customer’s use and or possession of the Cylinders.
(n) A Cylinder will be deemed lost if the Buyer reports that a Cylinder is lost to Heatcraft or the Cylinder has not been returned and 12 months (1 year) has elapsed since the Cylinder was supplied to the Buyer, whichever is the earlier.
(o) Heatcraft will issue an invoice for the replacement cost at the beginning of the month after the Cylinder is deemed lost and the amount of the invoice must be paid in accordance with clause 3. If the cylinder is returned in good order within 6 months after this date, the amount paid by the Buyer will be refunded less the appropriate Cylinder Service Charge for the extended period that the Cylinder was in the Buyer’s possession. If the Cylinder is returned 6 months after the date of being deemed lost no refund of the replacement cost charged will be issued.
(p) Title to the Cylinder(s) remains with Heatcraft (or its supplier) until payment in full is received, the risk in the lost or sold Cylinder(s) will pass to the Buyer upon Heatcraft issuing an invoice for the replacement cost for any lost Cylinders.
15. PROPER LAW AND COMPLIANCE
15.1 These Conditions shall be governed by the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of that State.
15.2 The Buyer shall comply with all applicable laws and regulations, and obtain and maintain all applicable licenses during the term of these Conditions, such as the US Foreign Corrupt Practices Act, the Criminal Code Act 1995 (Cth) and Criminal Code Amendment (Theft, Fraud , Bribery and related Offences) Act 200 (Cth) and all export control laws of Australia, New Zealand, the United States and any other applicable destination and hereby indemnifies and hold harmless Heatcraft, its directors, officers, servants and agents from any liability arising from the Buyer’s failure to comply with such laws.
16. ADDITIONAL COSTS, TAXES, ETC.
16.1 If any duties, taxes, rates or other impost shall be levied in respect of any purchase of Goods or hire of the Cylinders, the Buyer shall pay such amount in addition to the Price (plus GST).
16.2 In the event that the Buyer shall specifically order Heatcraft to acquire Goods or components from any foreign source the Price (plus GST) payable by the Buyer may be increased by Heatcraft at any time whether before or after delivery and despite any quotation that may have been given by Heatcraft to the Buyer to compensate Heatcraft for any exchange loss which may have occurred as a result of the fall in value of Australian currency as against the relevant foreign currency during the period from the date of the order to the date of the payment.
17.1 The Buyer shall be in default under these Conditions, where:
(a) the Buyer fails for any reason to pay any moneys due to Heatcraft as and when they fall due; or
(b) the Buyer fails to perform or observe any of its obligations under these Conditions; or
(c) the Buyer exceeds the limit of any credit account with Heatcraft; or
(d) any of the assets or property of the Buyer are subject to a warrant of execution or similar for more than seven days after its levy or issue; or
(e) the Buyer suspends payment of its debts or is presumed to be insolvent within the meaning of the Corporations Act 2001 (Cth) or enters or proposes to enter into any arrangement scheme or composition with its creditors or ceases or threatens to cease carrying on business or is wound up or suffers the appointment of any external administration.
17.2 In the event of Default by the Buyer, the Buyer must indemnify Heatcraft’s legal costs, fees, charges, expenses and outgoings on a solicitor and own client basis flowing from a Default.
18. TRUSTEE CAPACITY
18.1 If the Buyer is the trustee of a trust (whether disclosed to Heatcraft or not) the Buyer warrants to Heatcraft that the Buyer:
(a) enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) has the right to be indemnified out of trust assets; and
(c) will not retire as trustee of the trust or appoint any new or additional trustee without advising Heatcraft.
19.1 The Buyer agrees to Heatcraft collecting, using and disclosing personal information of the Buyer for various purposes, including to:
(a) assess creditworthiness in the “Credit Assessment”;
(b) supply the Goods to the Customer and the management of the Customer’s account;
(c) communicate to the Customer about the Goods which the Company or its partners or affiliates may provide to the Customer; and
(d) implement these Conditions.
19.3 Credit reporting bodies which Heatcraft may provide information to and receive information from include:
(a) Veda Advantage Ltd, whose contact details and policies about management of credit related information can be found at https://www.veda.com.au/contact-us
(b) Dun and Bradstreet, Inc, whose contact details and policies about management of credit related information can be found at http://dnb.com.au/contact-
19.4 Information about the Buyer may be included in reports that a credit reporting body provides to Heatcraft to assist Heatcraft to assess the credit worthiness of the Buyer.
19.5 If the Buyer fails to meet payment obligations, Heatcraft may be entitled to disclose this to a credit reporting body.
19.6 The Buyer has the rights to access information from Heatcraft, to request Heatcraft to correct the information, to make a complaint to Heatcraft, to request Heatcraft not to use information for pre-screening of direct marketing, and to request Heatcraft not to use or disclose information if the Buyer believes they have been or are likely to be a victim of fraud.”
20.1 If the Buyer enters into these Conditions as a partner, the Buyer warrants that all the partners agree to the entry into these Conditions and that all the partners are bound by these Conditions.
20.2 If the Buyer is a partnership, it must not vary its partnership without first obtaining Heatcraft’s written consent.
21. BUYER RESTRUCTURE
The Buyer must notify Heatcraft in writing of any change in its structure or management including any change in director(s), shareholder, or change of management within 4 days of the date of such change.
22. FORCE MAJEURE
Heatcraft will not be or deemed in default or breach of any contract as a result of the effects of force majeure. Force majeure will include any cause beyond the reasonable control of Heatcraft.
Any part hereof being a whole part of a clause shall be capable of severance without affecting any other part of these Conditions.
A single or partial exercise or waiver of a right relating to these Conditions will not prevent any other exercise of that right or any other right.