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ACTIVATED CARBON
TECHNOLOGIES PTY LTD TERMS & CONDITIONS OF TRADE
1.
Terms & Conditions
1.1
The
whole of the agreement between Activated Carbon Technologies Pty Ltd (ACN 103
713 622)
(ACT) and the Customer are those set
out in these terms and conditions, any invoice or credit application supplied
by ACT and those, if any, which are implied, and which cannot be excluded by
law (Terms). Any other contractual
terms of ACT or the Customer (whether upon the Customer’s order or elsewhere)
which are contrary to or inconsistent with these Terms shall not apply nor
shall they constitute a counteroffer.
1.2
By
placing an order for the Goods supplied by ACT under these Terms, the Customer
shall be deemed to have accepted these Terms and to have agreed that they shall
(unless expressly agreed in writing with ACT) apply to the exclusion of all
other written agreements with ACT.
2.
Definitions
In these terms &
conditions the following definitions apply:
Customer means the purchaser of
Goods from ACT pursuant to these Terms whether an individual or a corporation.
Goods means all products and
services supplied by ACT to the Customer from time to time.
Guarantor means the director(s)
of an incorporated Customer jointly and severally.
PPSA means the Personal
Property Securities Act 2009 (Cth).
PPSA Law means:
(a)
the
PPSA;
(b)
any
regulations issued from time to time pursuant to the PPSA;
(c)
any
amendment to the PPSA or regulations made from time to time.
Purchase Order means a purchase order
placed by the Customer with ACT for the purchase and delivery of the Goods by
ACT to the Customer.
Purchase Price means the price for
the Goods set out in a relevant Purchase Order.
Activated Carbon
Technologies Pty Ltd
means Activated Carbon Technologies Pty Ltd and any
associated corporation within the meaning of the Corporations Act.
3.
Purchase Order and Pricing
3.1
Prices
charged will be determined by ACT by reference to ACT’s standard prices in
effect at the date of the invoice. ACT may adjust pricing should external factors, including but not limited to, supplier
prices, exchange rates or transport costs fluctuate. Subject to clause 16, ACT
reserves the right to increase the prices, however, it will not change any
prices for an existing order that it has accepted.
3.2
Any
GST within the meaning of the A New Tax
System (Goods and Services Tax) Act 1999 or other government imposts shall
be payable by the Customer.
3.3
Customer
is responsible for ensuring the accuracy of all specifications, details and
quantities which form the basis of a Purchase Order and otherwise in accordance
with clause 16. ACT does not accept any responsibility for any errors in such
specifications, details and quantities and shall fulfil the order in conformity
with the information supplied by the Customer.
3.4
Documents requiring signature may be signed in electronic form and
are binding from the time
a person affixes a signature on the Customer’s behalf.
4.
Payment Terms
4.1 In
consideration for the Goods, the Customer will pay the Purchase Price to ACT
pursuant to these Terms.
4.2 Payment
of the Purchase Price will be within 30 days from the end of the month of
delivery or such other date as ACT nominates at its sole discretion (Due
Date).
4.3 If
payment of the Purchase Price is not made on or before the Due Date, ACT may at
its sole discretion:
(a) elect
to charge an administration fee for late payment of 6% per annum in respect to
the amount unpaid from time to time calculated daily on the outstanding
balance. The parties agree that this charge represents a genuine estimate of
loss and cost to ACT as a result of late payment.
(b) without
the need for written notice, refuse to supply further Goods to the Customer.
4.4 The
Customer is not permitted to offset any amount that it claims may be due to it
by ACT as against any amount payable by the Customer to ACT from time to time.
4.5 A
statement of account provided by ACT is prima facie proof of the balance due
and payable by the Customer to ACT and may be relied upon by ACT.
5.
Retention of Title
5.1 Ownership of
all Goods purchased by the Customer remains the property of ACT until all
moneys due and payable to ACT from time to time have been paid in full.
5.2 The
Customer grants to ACT an irrevocable right of entry to any premises on which
the Goods are
located for the purpose of ACT retaking possession of Goods that belong to it.
5.3 The
Customer agrees and acknowledges that if it breaches any of these terms of
trade then ACT
may at it sole discretion collect all Goods owned by
it pursuant to this retention of title.
5.4
In
addition to any lien to which ACT may, by statute or otherwise, be entitled,
ACT shall in the event of the Customer’s insolvency, bankruptcy or winding up,
be entitled to a general lien over all property or goods belonging to ACT in
the possession of the Customer (although all or some of such property or goods
may have been paid) for the unpaid price of any Goods sold or delivered to the
Customer under this or any other contract.
6.
Guarantee & Charge
6.1 The
Guarantor, and if there is more than one Guarantor each Guarantor jointly and
severally, hereby guarantees to ACT the due payment of all moneys and
performance of all conditions by
the Customer. In the event of a default by the Customer, ACT may at its sole
discretion seek recovery of moneys due to it and performance of obligations due
by the Customer without having to first exercise any remedies against the
Customer, require and enforce payment of moneys and performance of obligations
by the Guarantor.
6.2 The
Guarantor hereby irrevocably charges any freehold property owned by him or her
in favour of
ACT in order to secure the performance of the
obligations of the Guarantor and the Guarantor acknowledges that ACT may
register a caveat over such freehold property pursuant to this charge.
6.3 The
guarantee in this clause 6 is binding on the Guarantor their executors,
administrators and assigns and the benefit of the guarantee is available to any
assignee of the benefit of these Terms by the ACT.
7.
PPSA
7.1 The
Customer grants a security interest in the Goods and the proceeds (as defined
in the PPSA Law) to secure the obligation to pay the purchase price of the
Goods and other of its obligations to
ACT under these Terms (together the Indebtedness). The Customer warrants
that the Goods are not purchased for personal, domestic or household purposes.
7.2 The
Customer acknowledges and agrees that ACT may from time to time register the security
interest granted in clause 6.1, and the cost of registration will be a cost to
be borne by the Customer.
7.3 Where
the Goods and/or proceeds are not readily identifiable and/or traceable or
their recoverable value
is insufficient to pay the Indebtedness, the security interest shall also
extend to all the goods present and after acquired by the Customer, of which
the Goods form part, to the extent required to secure the Indebtedness.
7.4 The
Customer waives any right to receive notice in relation to any registration or amendment to a
registration on the Personal Property Security Register (PPSR). At the
Customer’s own expense, it will provide all reasonable assistance and relevant
information to enable ACT to register on the PPSR and generally to obtain,
maintain, register and enforce the security interests created by these Terms.
7.5 Any
payments received from the Customer shall be deemed to be made and applied by
ACT in the following order (unless ACT otherwise determines): (1) to any
obligation owed by the Customer which is unsecured, in the order in which the
obligations were incurred; (2)
to any obligations that are secured, but not by a purchase money security
interest (PMSI), in the order in which those obligations were incurred
(3) to obligations that are secured by a PMSI, in the order in which those
obligations were incurred.
7.6 Until
the Customer has paid all money owing to ACT, the Customer must at all times ensure that (1) all Goods, while in the
possession of the Customer, can be readily identified and distinguished, and/or
(2) all proceeds (in whatever form) that the Customer receives from the sale
of any of the Goods are readily identifiable and traceable.
7.7 If the
Goods are held by the Customer as inventory (as defined in the PPSA Law), then
the Customer may sell or lease the Goods in the ordinary course of business. Otherwise
until the Customer has paid all money owing to it the Customer must not sell or
grant a security interest in the Goods without ACT’s written consent.
7.8 To the
extent permissible by law, the Customer agrees that the following provisions of
the PPSA will not apply and it will have no rights under them: Section 95 (to
the extent that it requires the secured party to give notices to the grantor);
section 96; section 118 (to the extent that it allows a secured party to give
notice to the grantor); section 121(4); section 125; section 130; section
132(3)(d); section 132(4); section 135; section 142; section 143.
7.9 Section
115(7) of the PPSA allows for the contracting out of provision of the PPSA, the
following
provisions of the PPSA will not apply and the Customer will not have any rights
under them: section 127; section 129(2), (3); section 130(1); section 132;
section 134(2); section 135; section 136(3), (4) and (5) and section 137.
7.10 Unless
otherwise agreed and to the extent permitted by the PPSA Law, the parties agree
not to disclose any information of a kind referred to in section 275(1) of the
PPSA to an interested
person or any other person. The Customer waives any right it may have, or but
for this clause may have had, under section 275(7)(c) of the PPSA to authorise
the disclosure of the above information.
8.
Delivery of Goods
8.1 ACT will
charge to the Customer such charges for freight and handling for the delivery
of Goods to an address nominated by the Customer and the cost of such delivery
will form part of the Purchase Price.
8.2
Any
times quoted for delivery and/or supply are estimates only and ACT shall not be
liable for failure to deliver/supply, or for delay in delivery/supply. The Customer
shall not be relieved of any obligation to accept or pay for Goods, by reason
of any delay in delivery/supply or dispatch. ACT reserves the right to stop
supply at any time if the Customer fails to comply with these Terms.
9.
Risk in Goods
Notwithstanding
clause 5, the risk in the Goods vests in the Customer upon acceptance of an order and
from the point of dispatch from the premises of the ACT. In
particular the Customer carries the risk of the Goods whilst the Goods
are in transit. The Customer will insure the Goods for full replacement value
from time to time until the Goods have been paid for in full and ownership
vests in the Customer.
10.
Force Majeure
10.1 ACT is
not responsible for any delay in delivery of Goods or for any defect in Goods
that arises out of an event beyond its reasonable control including, but not
limited to, delay in delivery or supply of goods as a result of any adverse
weather conditions, strike, lock-out or other labour difficulty, delay in
supply of goods to ACT from its wholesaler or otherwise, national emergency,
war, global pandemic, prohibitive governmental regulation or any other cause
beyond the control of the parties.
10.2 In the
event of such an event of force majeure:
(a)
ACT may at its sole
discretion elect to delay delivery of the Goods or to cancel the order in part
or in its entirety; and
(b)
the Customer shall have no claim arising from late delivery
and no entitlement to cancel the order.
11.
Intellectual Property
11.1
All
intellectual property rights (including all rights resulting from intellectual
activity and includes copyright, inventions, patent rights, registered and
unregistered trademarks, design rights, circuit layouts and all rights and
interests of a like nature, including but not limited to methods and techniques, together with any
documentation relating to such ACT’s rights and interests), including those
developed during the supply of the Goods remain the sole property of ACT at all
times.
11.2
If
ACT terminates these Terms, the Customer must return all intellectual
property belong to ACT and the Customer grants ACT an irrevocable licence to
enter upon the Customer’s premises to reclaim any material incorporating ACT’s
intellectual property without incurring liability to the Customer or any other
person.
12.
Release
12.1 To the
extent permitted by law the Customer releases ACT in respect to any defect in
respect to the Goods or for any loss or damage arising out of any defect in the
Goods or delay in delivery or installation. In any event where ACT is liable
for any defect or delay, its liability shall be strictly limited to the cost of
replacement and/or redelivery of the Goods.
12.2
The
Customer acknowledges and warrants that it has relied on its own skill and
judgment or, alternatively, on the skill and judgment of tradesmen and
professional advisers retained by it to provide advice and assistance on the
suitability of the Goods for specific purposes and procedures and, in this
respect, shall indemnify ACT from and against any suit, claim, demand or
compensation which, but for these Terms, the Customer may have had against ACT,
except if the Customer is a consumer for the purposes of the Australian
Consumer Law or these Terms are deemed to be a small business contract under
the Australian Consumer Law.
13.
Conflict
In the
event of any conflict between these Terms and any Purchase Order or other terms
and conditions provided by the Customer, then these Terms will prevail in all
aspects.
14.
Dispute Resolution
In the
event of any dispute arising as to the quality, performance aspects or similar
functionality of the Goods supplied by ACT to the Customer, then such dispute
will be referred to Research Laboratory Services Pty Ltd (RLS) for
analysis and the report provided by RLS shall be final and binding upon the
parties save for manifest error. The costs of RLS will be borne equally between
the parties.
15.
Claim for Credit
15.1 ACT
will consider, but is not obliged to grant, a claim for credit if that claim
relates to:
(a)
an error on their part in invoicing or delivery; or
(b)
any claims for credit will only be considered if made within
seven (7) days from receipt of the Goods and not otherwise.
15.2 Where
goods are not manufactured by ACT then the warranty provided by the
manufacturer will be the sole warranty provided to the Customer.
15.3 To the
extent permitted by law the Customer releases ACT for any other defect in
respect to the supply, installation or operation of any equipment and the
performance of same and in the event that ACT is liable for any defect in
supply, installation or performance the liability of ACT is strictly limited to
the cost of replacement of the defective item, or, at the discretion of ACT,
the repair of the defective item.
16.
Variation
16.1
ACT
may vary these Terms by providing written notice to the Customer (by email,
conventional mail or by posting the amended terms on the website).
16.2
If
the Customer is a Consumer, or these Terms are deemed to be a Small Business
Contract (as these terms are defined in the Australian Consumer Law) and the
Customer does not deem the variation acceptable, the Customer may elect to
not proceed with the purchase of the Goods ordered before the date of the
variation, but which are intended to be subject to the variation.
16.3
If
the Customer is not a Consumer and these Terms are not deemed to be a Small
Business Contract, the Customer agrees that the variation applies from the
date of receiving notice of the varied Terms.
17.
Failure to Act
ACT's failure to
enforce or insist upon the timely performance of any term, condition, covenant
or provision in these Terms, or ACT's failure to exercise any right or remedy
available under these Terms or at law, or ACT's failure to insist upon timely
payment of monies when due or to demand payment
of any charges or fees which accrue or any extension of creditor forbearance
under these Terms shall not constitute a waiver of any subsequent default or a
waiver of ACT's right to demand timely payment of future obligations or strict
compliance with the Terms.
18.
Legal Construction
18.1
These
Terms shall be governed by and interpreted according to the laws of Victoria
and ACT and
the Customer consents and submits to the jurisdiction of the Courts of
Victoria.
18.2
Notwithstanding
that any provision of these Terms may prove to be illegal or unenforceable
pursuant to any statute or rule of law or for any other reason that provision
is deemed omitted without
affecting the legality of the remaining provisions and the remaining provisions
of these Terms shall continue in full force and effect.