Coogee Chemicals Purchasing Terms & Conditions
The parties agree as follows:
1. Interpretation
1.1 This Agreement comprises: (a) these Terms and Conditions. (b) the purchase order to which these Terms and Conditions apply (Purchase Order). (c) such other documents which are incorporated into the Agreement by reference, (together, the Agreement) and, where there is any inconsistency between those documents, they take precedence in the order stated above.
1.2 The parties to this Agreement are: (a) the Purchaser; and (b) the contractor supplying the Goods or performing the Services (or both) as identified in the Purchase Order (Contractor).
1.3 For the purposes of this Agreement: (a) Goods mean those goods as specified and described in the Purchase Order; and (b) Services mean those services as specified and described in the Purchase Order (including any part of the specified services, any ancillary services, and those goods required for the completion of the Services).
2. Acceptance
2.1 This Agreement will be deemed to be accepted if: (a) the Contractor signs the section of the Agreement which indicates the Contractor’s acceptance of the Agreement, and returns that signed section to the Purchaser; or (b) the Contractor commences performing any part of the Agreement.
2.2 Unless these Terms and Conditions expressly provides otherwise, the Contractor accepts all risks associated with performing its obligations under the Agreement, other than those risks expressly accepted by the Purchaser.
3. Provision of Goods and/or Services
3.1 The Contractor must supply the Goods and/or Services to the Purchaser in accordance with the Agreement.
3.2 The Goods and/or Services must match the description (including performance criteria) in the Purchase Order.
3.3 The Services must be performed by appropriately qualified, competent, skilled, experienced and professional personnel and must be rendered with due care and skill.
3.4 If the Contractor supplies more Goods than specified in the Purchase Order, the Purchaser may return the excess to the Contractor at the Contractor’s cost.
3.5 The Contractor must ensure that the Purchaser has the full benefit of any manufacturer’s warranties that may apply to the Goods or Services, or both (and the Contractor must, if requested, pursue any manufacturer’s warranties on the Purchaser’s behalf at the cost of the Contractor).
3.6 The Goods and/or Services must comply with applicable Law. The Contractor must supply the Purchaser with all material safety data sheets for any Goods which are dangerous goods.
3.7 The Contractor must obtain at its cost all requisite licenses, permits and authorities required to supply the Goods and/or Services.
3.8 If the Contractor supplies the Goods or performs the Services (or any part thereof) contrary to any Laws, the Contractor will bear all costs associated with that contravention.
4. Delivery
4.1 The Contractor must deliver the Goods to the Delivery Point on or before the Delivery Date or complete the Services by the Delivery Date. The Contractor must keep the Purchaser informed on all aspects of the performance of the Agreement as required by the Purchaser from time to time.
4.2 The Contractor must ensure that the Goods are suitably packed to avoid damage in transit, or in storage, and in such a way to comply with any applicable Laws.
4.3 Packages must be marked with the Purchase Order number, item number, Delivery Point, contents, quantity, date and method of dispatch and weight of each package.
4.4 To the extent not covered by clause 4.3, the Contractor must include a packing list with each package of Goods delivered.
5. Inspection and Acceptance
5.1 The Contractor must, upon reasonable written notice, provide the Purchaser or its nominee access to the Contractor’s premises, and arrange for access to any subcontractor premises, for the purpose of inspecting Goods and/or and Services and ensuring compliance with the Agreement. Any such inspection by the Purchaser does not constitute acceptance or relieve the Contractor from any of its obligations under the Agreement.
5.2 The Purchaser must have a reasonable time to inspect the Goods after delivery. Payment for the Goods or the signing of delivery receipts before inspection does not constitute acceptance of the Goods.
5.3 The Contractor must provide to the Purchaser, at the Purchaser’s request, progress reports on the performance of the Services. A progress report must be sufficiently detailed to enable the Purchaser to ascertain whether the Services are in conformity with the Agreement.
5.4 At any time during the performance of the Services, the Purchaser may inspect or witness tests on the Services or their results. Page 1 of 9
5.5 If upon inspection, the Purchaser finds any Goods to be Defective Goods and/or any Services or their results to be Defective, the Purchaser may: (a) reject the Defective Goods by returning them to the Contractor. (b) reject the Defective Services by notifying the Contractor that the Purchaser is rejecting them. (c) repair the Defective Goods; or (d) make good the Defective Services.
5.6 The Purchaser may reject and return to the Contractor (in the case of Goods) any Goods and/or Services which are not in conformity with the Agreement even if the Purchaser has accepted or paid for those Goods and/or Services.
5.7 The Contractor must reimburse the Purchaser for any expenses the Purchaser incurs in returning or repairing Defective Goods and/or in making good Defective Services.
5.8 The Contractor must refund to the Purchaser, when requested, any payments made by the Purchaser in respect of Goods and/or Services which the Purchaser rejects.
6. Performance
6.1 The Contractor, in supplying the Goods or performing the Services, must: (a) not interfere with the Purchaser’s activities or the activities of any other person at the Site and ensure that the Site is left clean (b) not interfere with the activities of businesses or persons occupying adjoining sites or land in the vicinity of the Site (c) be aware of and comply with, and ensure that the Contractor’s personnel are aware of and comply with, all applicable Laws, all Site procedures, and comply with all lawful directions of the Purchaser; and (d) comply with any induction and safety requirements in relation to the Site notified by the Purchaser.
7. Title and Risk
7.1 Title in each part of the Goods passes to the Purchaser upon the earlier of the Delivery Date or payment of the applicable portion of the Price.
7.2 All Goods will be at the Contractor’s risk until: (a) the Delivery Date of the Goods or Services; (b) the Purchaser’s satisfaction that the Goods or Services comply with the Agreement; and (c) the Purchaser issuing a certificate of acceptance.
7.3 The Contractor warrants that: (a) on delivery, the Purchaser has complete ownership of the Goods free of any liens, charges and encumbrances; and (b) the Purchaser will be entitled to clear, complete, and quiet possession of the Goods.
8. Price
8.1 The Purchaser agrees to pay the Contractor the Price, in accordance with the Agreement, for the Goods and/or Services.
8.2 The Price is the sole basis for payment to the Contractor under the Agreement and is deemed to include all risks, liabilities and obligations expressed or implied in the Agreement. Except as expressly provided for in the Agreement, the Price is not subject to rise and fall or any escalation.
8.3 The Price is inclusive of all costs incurred by the Contractor in supply of the Goods and/or performance of the Services including all charges for packaging, packing, insurance and delivery of the Goods in accordance with the Agreement, any mobilisation or demobilisation costs, and the cost of any items used or supplied in conjunction with the Services. The Price is also inclusive of all taxes except GST.
8.4 The Price may not be increased without the Purchaser’s prior written consent. The Purchaser has the right to refuse to give its consent.
8.5 The Contractor must not conduct a variation nor deviate from the Agreement except as directed or permitted in writing by the Purchaser.
9. Invoicing and Payment
9.1 All invoices must clearly show the Purchase Order number and be addressed to the Purchaser at the address listed in the Purchase Order.
9.2 Subject to clause 9.3, payment will be made by the Purchaser end of month following receipt of the Contractor’s tax invoice; providing the Goods have been received and accepted, or the Services performed and accepted, by the Purchaser. The date of the tax invoice will not be before the Delivery Date of the Goods or performance of the Services.
9.3 Where the Purchaser disputes the invoice, the Purchaser must notify the Contractor in writing and the Contractor must: (a) within the time directed by the Purchaser, issue a credit note for the full amount of the disputed invoice and issue a new invoice for the undisputed amount, if any (undisputed invoice); (b) the Purchaser will pay the undisputed invoice or, if no such undisputed invoice is issued by the Contractor in accordance with clause 9.3(a), the undisputed part of the relevant invoice (if any) and dispute the balance; and (c) if the resolution of the dispute determines that the Purchaser is to pay an amount to the Contractor, the Purchaser will pay that amount upon resolution of that dispute.
9.4 The Purchaser may reduce any payment due to the Contractor under the Agreement by any amount which the Contractor is liable to the Purchaser, including costs, charges, damages and expenses and any debts owed by the Contractor to the Purchaser on any account whatsoever. This does not limit the Purchaser’s right to recover those amounts in other ways.
9.5 Payment by the Purchaser to the Contractor will not constitute an admission by the Purchaser that any Goods or Services have been delivered or performed to the Purchaser’s satisfaction (as applicable) and will only be taken to be payment on account.
9.6 If the Purchase Order involves the supply of Services on a cost plus or per hour basis, the Purchaser has the right to conduct an audit of the basis of the Contractor’s charges using the Contractor’s records. This right continues for 12 months after the expiry or termination of the Agreement.
10. Defects and Warranty Period
10.1 Without limiting the Contractor’s other obligations or warranties provided under these Terms and Conditions, the Contractor guarantees the Goods and Services and each part of the Goods and Services against any Defect under normal working conditions for a period of twelve (12) months after the Delivery Date and written acceptance of the Goods by the Purchaser (Warranty Period).
10.2 If, during the Warranty Period, the Purchaser finds any Defects in the Goods and/or Services (other than a Defect caused by the negligence of the Purchaser), the Purchaser may reject or accept the Goods and/or Services or require that any such Goods and/or Services be promptly repaired or replaced, (as the case may be) by the Contractor at no additional cost to the Purchaser.
11. Termination
11.1 The Purchaser may cancel a Purchase Order in whole or in part for any reason and at any time upon written notice to the Contractor.
11.2 In the event of termination for reason other than default of the Contractor, the Purchaser must pay the Contractor its reasonable, direct, and substantiated costs of termination subject to the Contractor mitigating these costs as far as practicable.
11.3 If the Contractor fails, refuses, or is unable to deliver the Goods or perform the Services as directed by the Purchase Order or is otherwise in default of the Agreement, the Purchaser may terminate the Agreement in part or whole in writing to the Contractor without incurring any obligation to the Contractor.
11.4 The Purchaser may, subject to compliance with Law, terminate the Agreement if the Contractor is or becomes Insolvent.
12. Contractor’s Personnel and Access to Site
12.1 The Purchaser may require the removal from the Site of any of the Contractor’s Personnel who, in the Purchaser’s reasonable opinion, is incompetent or lacks the experience necessary for the work assigned to that person, or who has breached any applicable Laws, or the policies of the Purchaser. The Contractor must, at its cost, promptly remove and replace such Personnel.
12.2 The relationship between the Purchaser and the Contractor is that of principal and contractor. The Contractor and the Contractor’s Personnel will not under any circumstances be considered servants, employees, or agents of the Purchaser.
12.3 The Contractor indemnifies the Purchaser against any liability, claim, loss, damage, cost or expense suffered or incurred by the Purchaser in respect of the payment of salaries, wages, levies, commissions, allowances, and other remuneration to the Contractor’s Personnel and for any payments to authorities in respect of the Contractor’s Personnel (including in respect of any tax (including payroll tax), superannuation, or workers’ compensation insurance).
12.4 The Contractor is at all times responsible for the provision of accommodation, messing, uniforms, safety equipment, flights, and transport of the Contractor’s Personnel, unless otherwise expressly specified in the Purchase Order. Where accommodation and related facilities are provided by the Purchaser, the Contractor indemnifies the Purchaser against any liability, claim, loss, damage, cost or expense suffered or incurred by the Purchaser in connection with any loss or damage to any accommodation (or any part of the accommodation) and associated facilities and services caused or contributed to by the Contractor or the Contractor’s Personnel.
12.5 The Contractor is responsible for the management of all industrial relations matters relating to the Contractor’s Personnel and must keep the Purchaser informed of any potential disputes with any Contractor’s Personnel or unions.
12.6 The Purchaser must provide non-exclusive access to the Site sufficient for the Contractor to provide the Goods and Services under the Agreement.
12.7 The Contractor must ensure that the Contractor and the Contractor’s Personnel: (a) keep themselves informed as to the requirements of, comply with and not do anything which may place the Purchaser in breach of Laws or legislative requirements applying to the Site; (b) comply with all procedures, policies, or rules adopted from time to time by the Purchaser in connection with the Site; and (c) comply with the directions (if any) given to the Contractor by the Purchaser or others authorised by the Purchaser or any legislative requirement at any time in connection with the Site (including access to and use of the Site).
13. Contractor’s Equipment
13.1 The Contractor must maintain its plant and equipment in a safe, operable, and good working condition throughout the performance of the Agreement.
14. Warranties
14.1 The Contractor warrants that it will at all times comply with applicable Law and give all notices necessary to comply with any legal requirements and any fees associated with compliance with applicable Law.
14.2 The Contractor warrants that the Goods and Services supplied will (as applicable): (a) match the description of the Goods and Services in the Purchase Order; (b) if the Contractor gave the Purchaser a sample of the Goods before the Purchaser issued the Purchase Order, the Goods correspond with the sample; (c) if the Contractor provided the Purchaser with a demonstration of the Services before the Purchaser issued the Purchase Order, the Services correspond in nature and quality with the services that achieved that result; (d) comply with applicable Law; (e) be new and of merchantable quality; (f) be fit for their intended purposes set out in, or which an experienced professional contractor would reasonably infer from the Purchase Order; (g) to the extent that the Services are design Services, the works being designed will be fit for their intended purpose as described in the Purchase Order; (h) any items which the Contractor uses or supplies in conjunction with the Services are of merchantable quality and comply with any standards specified in the Purchase Order and are fit for their usual and any purpose as described in this Purchase Order; (i) have the full benefit of any manufacturer’s warranties that may be applicable to the Goods; (j) be in good working order and condition and free from Defects and omissions; (k) have a life expectancy commensurate with what would be expected of similar goods provided for similar purposes by a competent and reputable supplier; (l) not infringe or contribute to the infringement of any intellectual property rights; and (m) conform with these Terms and Conditions for the Warranty Period.
15. Insurance
15.1 The effecting of insurance as required under clause 15.2 will not in any way limit the Contractor’s obligations or responsibilities under the Agreement.
15.2 The Contractor, at its own expense, must procure and maintain all insurances required by Law and the following insurance policies: (a) insurance for the Goods up to the time they are delivered and installed (if required) for an amount not less than their replacement value; (b) workers’ compensation insurance (including occupational disease where required by Law) and employer’s indemnity insurance which complies with relevant Law covering all claims and liabilities under any statute and at common law (where applicable) for the death of or injury to any person employed by the Contractor or any of the Contractor’s Personnel in connection with the Agreement; (c) public liability insurance with a limit of not less than $20,000,000) to cover the Contractor’s legal liability in respect of occurrences resulting in: (i) (ii) death of or bodily injury (including illness) to any third party; and damage to property not belonging to nor held in trust by nor in the care, custody or control of the Contractor. In addition, the Contractor must effect the public and products liability insurance in the joint names of Coogee (as Principal), the Contractor and Secondary Subcontractors to cover their respective rights and interests and liabilities to third parties and their liability to each other for loss or damage to property (other than property required to be insured under a contract works policy of insurance) and death of or injury to any person (other than liability which applicable law requires to be covered under a worker’s compensation policy). (d) motor vehicle insurance, covering all mechanically propelled vehicles that are registered, or capable of being registered, for road use and owned or leased by the Contractor, and are at any time used in connection with the Agreement, including: (i) insurance that is compulsory under applicable Law governing the use of motor vehicles and liability for personal injury or death; and (ii) liability insurance for Purchaser and third party property damage with a limit of not less than $30 million per occurrence; and (e) if the performance of the Services involves the provision of professional services, professional indemnity insurance with a limit of not less than $2 million per claim, or such other amount required by the Purchaser in writing, for a period of two years, or such other period required by the purchaser in writing, from the date of the Purchase Order. (f) If the performance of the Contract requires the Contractor to use or provide for use constructional plant and equipment, the Contractor shall maintain or require the owners of such constructional plant and equipment to maintain insurance covering all loss of and damage to the Contractor’s constructional plant and equipment, for its replacement value.
15.3 Before commencing the provision of Goods or Services, the Contractor must provide the Purchaser with certificates of currency for any insurances required to be held by the Contractor and its subcontractors under the Agreement. All costs incurred by the Purchaser as a consequence of the Contractor not maintaining such insurances will be a debt due from the Contractor to the Purchaser.
15.4 The Contractor must ensure that every subcontractor engaged by it maintains insurance in the same manner required of the Contractor under this clause 15.
15.5 The insurances arranged by the Contractor and its subcontractors must be subject to approval by the Purchaser as to the adequacy and terms of insurance protection required and their continued existence and the Contractor must provide all such documentation, information and assistance as may be required by the Purchaser in this regard.
15.6 No approval by the Purchaser as to the adequacy in terms of insurance protection nor sighting by the Purchaser of certificates of currency or copies of policies will be taken as a representation by the Purchaser, that such insurance is adequate or be raised or pleaded in bar to any action against the Contractor for default in performing in any of the requirements under this clause.
15.7 The Contractor must at all times be responsible for complying with and abiding by the terms and conditions of the insurances arranged by the Contractor and for the payment of all excesses or deductibles under the terms of such insurances.
15.8 The Contractor must immediately advise the Purchaser of any change or cancellation of the insurances referred to in this clause 15.
16. Liabilities and indemnities
16.1 The Contractor acknowledges that if it enters the Site, it does so at its own risk. The Contractor must ensure that its employees, agents, contractors and subcontractors are also aware that they enter the Site at their own risk.
16.2 The Contractor indemnifies the Purchaser and the Purchaser Group against any liability, claim, loss, damage, cost or expense suffered or incurred in connection with any claim made against any member of the Purchaser Group in respect of: (a) death or personal injury to any person (including the Purchaser’s Personnel or the Contractor’s Personnel); and (b) damage to or loss of property (including Intellectual Property) of any person, arising out of or in connection with any act or omission by the Contractor or the Contractor’s Personnel, including a breach of the Agreement, tort (including negligence) or breach of a statutory or equitable duty.
16.3 Every exemption, limitation, defence, immunity indemnity or other benefit contained in the Agreement to which the Purchaser is entitled is held by the Purchaser for the benefit of, and extends to protect, each of the Purchaser’s Personnel, the Contractor’s Personnel and each member of the Purchaser Group and their respective Personnel (excluding the Contractor and the Contractor’s Personnel).
16.4 Each indemnity in the Agreement is a continuing obligation separate and independent from the Contractor’s other obligations and survives termination of the Agreement.
16.5 It is not necessary for the Purchaser to incur expense or make payment before enforcing a right of indemnity conferred by the Agreement.
16.6 The Purchaser is not liable to the Contractor in any circumstances for any indirect, economic, special or consequential loss or damage, including but not limited to loss of revenue, loss of production or loss of profit.
16.7 The maximum aggregate liability of the Purchaser in respect of any and claims by the Contractor under, or in connection with the Agreement, is limited to the Price.
17. Liquidated Damages
17.1 The Contractor must pay liquidated damages to the Purchaser for any failure to provide the Goods and/or Services by the date required under the Agreement.
17.2 Liquidated damages are calculated at the Liquidated Damages Rate of 5% per day up to and including the date the provision of the Goods and/or Services has been completed in compliance with the Agreement.
17.3 Liquidated damages payable pursuant to this clause 17 will immediately become a debt due and payable by the Contractor to the Purchaser.
17.4 The Purchaser may, at any time, give the Contractor a written demand for any liquidated damages payable by the Contractor pursuant to this clause 17.
17.5 The Contractor acknowledges that the level of liquidated damages payable under this clause 17 is a genuine pre-estimate of the loss suffered by the Purchaser for a failure of the Contractor to deliver the Goods and/or Services by the Delivery Date and is not a penalty.
17.6 Payment by the Contractor of any liquidated damages will not relieve the Contractor of its obligation to provide the Goods and/or Services, or from any of its other obligations or liabilities under the Agreement.
17.7 If the definition of Liquidated Damages Rate is not completed or is completed by words which indicate that liquidated damages will not apply to the Agreement (whether by the use of the words ‘not applicable’, ‘nil’ or otherwise) or if clause 17.1 is found to be unenforceable for any reason, the Contractor must indemnify the Purchaser from any loss suffered or incurred by the Purchaser by reason of the Contractor’s delay in providing the Goods and/or Services by the Delivery Date.
18. Records and right to audit
18.1 At all times during the term of the Agreement, the Contractor must maintain complete and accurate records, together with all supporting or underlying documents and materials, relating to or in connection with the Goods and/or Services and the Contractor’s obligations under the Agreement (and the Contractor must ensure that its Personnel maintain the same).
18.2 The Purchaser may at any time by reasonable notice in writing to the Contractor request that the Contractor make available the records required to be maintained under this clause. Upon such request, the Contractor must make such records available for inspection and audit (including copies and extracts of records if required) to the Purchaser.
19. Confidentiality, Privacy and Data Protection
19.1 The Contractor must not, without the Purchaser’s prior written consent, refer to its appointment in any advertisement or promotional material or discuss the Goods or Services with any third party.
19.2 The Contractor must keep all information provided by or on behalf of the Purchaser (including the Agreement), including any information which relates to the business or affairs of the Purchaser (or the Purchaser Group), confidential and must not disclose such information to a third party without the Purchaser’s prior written consent.
19.3 The rights and obligations under this clause 19 continue after the termination of the Agreement.
19.4 The Contractor must at all times (and use reasonable measures to ensure third parties it contracts with in relation to this Contract must) implement and maintain sufficient cyber security measures to maintain the integrity of its information technology systems, operational technology systems, networks, internet-enabled applications or devices, and the data contained within such systems. Any breach must be notified to the Purchaser immediately upon discovery.
19.5 The Contractor must comply with its obligations under the Privacy Act 1988 (Cth) in respect of personal information obtained by or disclosed to it pursuant to the Agreement.
20. Intellectual Property
20.1 The Contractor warrants that the Goods (other than those manufactured to the Purchaser specifications) covered by the Agreement and their use, alone or in combination, according the Contractor’s specifications or recommendations, if any, will not infringe any patent trade mark, copyright industrial design, or process of manufacture (Intellectual Property) and agrees to indemnify the Purchaser against all judgments, liabilities costs, and expenses, which result from infringement or alleged infringement of any Intellectual Property rights. The Purchaser will have a permanent, assignable, non-exclusive, royalty free licence to use any Intellectual Property in the Goods for the use, operation, repair, maintenances, servicing, addition, or alteration of the Goods.
20.2 The Contractor must provide all technical data, in connection with the Goods and/or Services to the Purchaser.
21. Sub-Contracting
21.1 The Contractor must not subcontract the performance of any of its obligations under the Agreement without the prior written consent of the Purchaser, which consent may be withheld by the Purchaser in its absolute discretion.
21.2 The Purchaser may withdraw its permission to subcontract at any time and for any reason whatsoever, without penalty. The Contractor must take immediate action to remove the affected subcontractor or subcontractors from the Site.
21.3 The Contractor is not relieved of any of its obligations pursuant to the Agreement or entitled to any change to the Price or any other payment or compensation by reason of any subcontract agreement or arrangement it enters into with a Subcontractor, or the Purchaser giving, or refusing or failing to give its consent under clause 21.1.
21.4 The Contractor is responsible for the acts and omissions of any subcontractor engaged by the Contractor (including any subcontractor to a subcontractor) as if they were the acts of the Contractor, whether those acts or omissions were authorised by the Purchaser or not.
22. Dispute Resolution
22.1 If either party considers a dispute has arisen under the Agreement, it may issue a dispute notice to the other party which sets out the details of the dispute. In the event of a dispute, a senior representative from each party with authority to resolve the dispute must meet to resolve the dispute. If no agreement is reached within fifteen (15) Business Days after a dispute notice is issued, the dispute must be referred to the Managing Director (or equivalent) of the respective parties.
22.2 If the Managing Directors (or equivalent) of the respective parties are not able to resolve the dispute within fifteen (15) Business Days after a dispute is referred to them, and having met at least twice, either in person or by electronic means where they are able to communicate simultaneously, either party may commence legal proceedings.
22.3 During a dispute, the parties must continue to perform their obligations under the Agreement.
23. Compliance
23.1 The Contractor must: (a) at all times comply with applicable Law relating to modern slavery, anti-bribery and improper payments including but not limited to the Criminal Code Act 1995 (Cth) (Australia), the Foreign Corrupt Practices Act 1977 (United States) and the Bribery Act 2010 (United Kingdom); (b) operate in a manner consistent with the United Nations (UN) Universal Declaration of Human Rights and the UN Guiding Principles on Business and Human Rights; and (c) not engage in any conduct that is unlawful or is otherwise restricted or prohibited under any applicable competition Law in relation to the terms and conditions of the Agreement.
24. Taxes and GST
24.1 Unless otherwise expressly provided in these Terms and Conditions, the Contractor must pay all taxes including sales tax, payroll tax, levies, duties (including customs duties) and assessments due in connection with the Goods and/or Services. The Contractor must indemnify the Purchaser from any liability for those taxes, charges and other payments which has arisen or may arise.
24.2 Any reduction in the amount of customs duty actually paid, or any refunds of customs duty received shall be to the Purchaser’s account.
24.3 If any supply made under the Agreement is or becomes subject to GST, the party to whom the supply is made (Recipient) must pay to the party making the supply (Supplier), as consideration in addition to any consideration payable or to be provided elsewhere in the Agreement, subject to issuing a tax invoice, an additional amount on account of GST, such amount to be calculated by multiplying the consideration by the applicable rate of GST.
24.4 Any amount in respect of GST payable under clause 24.3 must be paid to the Supplier on or before the last Business Day of the month following the month in which the Recipient receives the tax invoice.
24.5 If any party is required to reimburse or indemnify the other party for a cost, expense or liability (Cost) incurred by the other party, the amount of that Cost for the purpose of the Agreement is the amount of the Cost incurred less the amount of any credit or refund of GST to which the party incurring the Cost is entitled to claim in respect of the Cost.
25. Labour Hire Licensing
24.6 Without limiting anything in these Terms and Conditions, where the Services performed require that the Contractor must hold a Labour Hire Licence in order to lawfully perform the Services, the Contractor: (a) warrants that it currently hold the required Labour Hire Licence and that it is on the Register of Licences as holding a Labour Hire Licence; (b) at its expense, must maintain a Labour Hire Licence that allows it to lawfully perform the Services; (c) must ensure the Services comply with any conditions imposed on its Labour Hire Licence; (d) must immediately inform the Purchaser if the Contractor is subject to any disciplinary action, including a show cause process, regarding its Labour Hire Licence; and (e) must immediately inform the Purchaser if the Contractor’s Labour Hire Licence is cancelled, suspended or has any conditions imposed on it.
26. Health Safety & Environment
26.1 Where the supply of Goods or Services requires the Contractor to enter the Site, the Contractor and the Contractor’s Personnel: (a) enter at their own risk; (b) must perform the Services safely so as to protect persons, property and the environment. (c) ensure that the Contractor’s Personnel entering the Site perform the Services or deliver the Goods in a safe manner and in a way that do not prejudice safe working practices, safety and care of property and continuity of work at the Site;
26.2 The Contractor warrants it has systems in place to manage any health and safety risks associated with the supply of Goods or performance of Services and has the necessary skills and experience to do so.
26.3 Without limiting the Contractor’s obligations under clause 14.1, comply with any applicable Law, Code of Practice or Australian Standard that deals with occupational health and safety, workers’ compensation, workplace rehabilitation and workplace insurance, for the relevant jurisdiction of the Site, being the Work Health and Safety Act 2020 (WA), Work Health and Safety (Mines) Regulations 2022 (WA) or Workers’ Compensation and Rehabilitation and Other Legislation Amendment Act 2024 (Qld), or the Workers Compensation Act 1987 No 70 9 (NSW).
26.4 The Contractor must consult, cooperate and coordinate activities with all other persons who have a duty under the applicable safety Laws in relation to the same matter.
26.5 The Contractor must: (a) immediately notify the Purchaser upon the occurrence of any accident, incident or near miss accident or incident; and (b) provide all such information and assistance as the Purchaser reasonably requires in connection with any statutory or internal health and safety, environment, or community investigation in connection with the Agreement, the supply of the Goods, or the performance of the Services.
26.6 Any direction given by the Purchaser to the Contractor regarding health and safety must be complied with and does not derogate from the Contractor’s contractual obligations.
26.7 Any failure by the Contractor to meets its Contractual obligation in regard to health and safety is a material breach of the Agreement and the Purchaser may terminate the Agreement without notice.
27. Conflict of Interest
27.1 The Contractor must advise the Purchaser of any director, owner or employee of, or any person otherwise engaged by the Contractor who: (a) is involved, planned to be involved or who becomes involved in performing any Services, or supplying any Goods under the agreement; or (b) who was involved in the preparation, review, negotiation, approval, or execution of the Agreement, that has a real, potential or perceived Conflict of Interest.
27.2 The Contractor warrants to the Purchaser that the Contractor has systems in place to identify Conflicts of Interest.
27.3 The Contractor warrant that at the time of entering into the Agreement there is no Conflict of Interest that the Contractor has not previously declared to the Purchaser in writing, and the Contractor undertakes to advise the Purchaser immediately if a Conflict of Interest arises.
28. Coogee Code of Conduct
28.1 The Contractor must comply with the Coogee Supplier Code of Conduct , as amended from time to time, the terms of which are incorporated into the Agreement.
28.2 The Contractor must notify the Purchaser as soon as the Contractor becomes aware that there is any actual or suspected breach by the Contractor of clause 28.1
29. Assignment
29.1 The Contractor must not assign or subcontract the whole or any part of the Agreement without the Purchaser’s prior written consent.
29.2 The Purchaser may assign or novate the Agreement or any right, benefit, obligation or liability under or in respect of the Agreement without the consent of the Contractor.
30. Terms Exclusive
30.1 By supplying the Goods and Services referred to in the Purchase Order, the Contractor agrees to be bound by the terms in the Agreement.
30.2 Except as may be specifically provided in the Agreement, any terms and conditions contained in, or relating to any other documents, including any of the Contractor’s documents, in respect of the Goods and/or Services are excluded.
31. Governing law
31.1 The Agreement is governed by the Laws of Western Australia.
31.2 Each party submits to the non-exclusive jurisdiction of the courts of Western Australia.
32. PPSA
32.1 If either party (Secured Party) determines the Agreement (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, the other party (Grantor) agrees to do anything which the Secured Party asks and considers necessary for the purposes of: (a) ensuring the security interest is enforceable, perfected, and otherwise effective; (b) enabling the Secured Party to apply for any registration, or give any notification, in connection with the security interest so the security interest has the priority required by the Secured Party; or (c) enabling the Secured Party to exercise rights in connection with the security interest.
32.2 The parties will bear their own costs in complying with, and performing, their respective obligations under this clause 32.
32.3 If the Agreement is or contains a security interest for the purposes of the PPSA, each party agrees (to the extent allowable by Law): (a) sections 142 and 143 of the PPSA are excluded and the relevant Secured Party need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), and 132(4) of the PPSA; and (b) the Purchaser need not give any notice required under any provision of the PPSA (except section135).
32.4 This clause applies despite any other clause of the Agreement.
32.5 If a term used in this clause 32 has a particular defined meaning in the PPSA, it has the same meaning in clause 32.
33. Miscellaneous
33.1 All notices and other documents required to be given under the Agreement: (a) must be in writing and signed by an authorised person; and (b) may be delivered by post, hand or email to the party to whom the notice is addressed at its address stated in the Agreement or notified to the other party by notice.
33.2 The Agreement constitutes the entire agreement between the parties in respect of its subject matter and supersedes all other prior agreements, quotation requests, understandings, representations, warranties, promises, statements, negotiations, letters and documents in respect of its subject matter (if any) made or given prior to the date of the Purchase Order. The Contractor warrants it has not entered into the Agreement on the basis or in reliance on any prior representation which is not contained in the Agreement.
33.3 The expressions “including”, “includes” and “include” are not expressions of limitation but have the meaning as if followed by “without limitation”.
33.4 The Agreement may be executed in any number of counterparts.
33.5 Headings and bold type are for convenience only and do not affect the interpretation of the Agreement.
33.6 If any provision of this Agreement is, or becomes, void or unenforceable, that provision is, or will be, severed from the Agreement so that all provisions that are not, or do not become void or unenforceable remain in full force and effect and are unaffected by that severance.
33.7 No failure, delay or relaxation by any party in exercising any rights conferred under the Agreement will operate as a waiver of such right. Any waiver must be in writing and signed by the party granting the waiver.
33.8 The Agreement may only be amended in writing signed by the parties.
33. Definitions
Agreement is defined in clause 1.1.
Business Day means a day which is not a Saturday, Sunday or public holiday in Perth, Western Australia.
Conflict of Interest means a personal or business relationship with anyone at any of the Purchaser’s operations which may give rise to a real, potential or perceived conflict of interest.
Dangerous Goods has the meaning given in the Australian Code for the Transport of Dangerous Goods by Road & Rail, Edition 7.9, 2024.
Defect means any aspect of the Goods or Services not in accordance with the Agreement, any damage, deficiency, fault, inadequacy in design, performance, workmanship, quality or makeup of the Good or Services and Defective has a corresponding meaning.
Delivery Date means the delivery date specified in the Purchase Order or as agreed in writing.
Delivery Point means the delivery point specified in the Purchase Order.
Goods is defined in clause 1.3(a).
GST means the goods and services tax imposed by the New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
Heavy Vehicle National Law means the Heavy Vehicle National Law and its associated regulations, being the Heavy Vehicle (Fatigue Management) National Regulation, the Heavy Vehicle (General) National Regulation, the Heavy Vehicle (Mass, Dimension and Loading) National Regulation, the Heavy Vehicle (Registration) National Regulation and the Heavy Vehicle (Vehicle Standards) National Regulation).
Insolvent means, with respect to a party, that it is insolvent (as defined in the Corporations Act 2001 (Cth)), in liquidation or provisional liquidation, receivership, bankruptcy (protective or otherwise) or under administration, unable to pay its debts as and when they fall due or otherwise insolvent, or that it has entered into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors or that any analogous event has occurred.
Intellectual Property is defined in clause 20.1.
Labour Hire Licence means the licence required by the Labour Hire Licensing Act 2017 (Qld).
Law means all legislation including regulations, bylaws, orders awards and proclamations with which a party is legally required to comply, together with all Authority requirements, guidelines, consents, certificates, licenses, permits and approvals (including conditions in respect of those consents, certificates, licenses permits and approvals) with which a party is legally required to comply and includes any law made to replace, modify, amend, or modernise.
Liquidated Damages Rate means 5% of the Purchase Order value of the Goods and or Services per day, up to and including the date the provision of the Goods and/or Services has been completed in compliance with the Agreement.
Personnel means directors, employees, agents, contractors or subcontractors of the parties, but a reference to the Purchaser’s Personnel excludes the Contractor.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means the price set out or inferred in the Purchase Order.
Purchase Order has the meaning given in clause 1.1(b)
Purchaser means Coogee Chemicals Pty Ltd (ACN 008 747 500) or such other member of the Purchaser Group named on the Purchase Order.
Purchaser Group means the Purchaser and its related bodies corporate as defined in the Corporations Act 2001 (Cth).
Services is defined in clause 1.3(b).
Site means the Purchaser’s site, or sites, specified in the Purchase Order.
Terms and Conditions means the terms and conditions contained in this document.
Coogee Group Sales Terms & Conditions
The parties agree as follows:
1. GENERAL
(a) Capitalised terms used in these general terms and conditions of sale are defined in clause 288.
(b) These general terms and conditions of sale shall automatically apply to and be an integral part of any Contract for the purchase of Goods from Coogee.
(c) Unless Coogee otherwise agrees in writing, the Contract contains the only terms and conditions of sale to which Coogee will be bound in connection with the supply of Goods to the Buyer.
(d) The Buyer agrees that these general terms and conditions of sale will in all circumstances prevail over the Buyer’s terms and conditions of purchase or supply (if any). Further, any addition or other modification to these general terms and conditions of sale or in quantities, prices or deliveries which is contained in any acknowledgement, invoice or other form or communication from the Buyer and not in writing signed by Coogee shall have no force or effect, notwithstanding Coogee’s acceptance of an order for, or delivery of, Goods.
(e) These general terms and conditions of sale supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods.
(f) The Buyer acknowledges that by accepting delivery of the Goods and/or credit terms offered by Coogee, the Buyer agrees to be bound by these general terms and conditions of sale.
2. CREDIT FACILITIES
(a) The Buyer agrees that it is not entitled to any credit facilities until it receives notice in writing from Coogee stating that credit facilities have been given and specifying the terms and conditions upon which such credit facilities are given.
(b) Until the Buyer receives such notice in writing, any Goods that are supplied by Coogee to the Buyer shall be on the basis of cash prior to or upon delivery.
3. OFFERS AND ORDERS
(a) The Buyer’s orders shall become binding on Coogee upon receipt by the Buyer of Coogee’s written order confirmation or acknowledgment (or invoice or delivery notice, as the case may be).
(b) Coogee will make all reasonable efforts to have the Goods delivered to the Buyer on or about the date or within the timeframe forming part of the Contract.
(c) Coogee shall not be liable for any failure to deliver or delay in delivery for any reason.
(d) The Buyer will be bound to take delivery of, and pay for, all Goods ordered by it from Coogee, and which Coogee supplies or makes available to the Buyer in accordance with the Contract. Any order placed by the Buyer with Coogee is irrevocable.
(e) Where the Buyer does not take delivery of, or collect, the Goods from Coogee upon such Goods becoming available to the Buyer at the agreed delivery point, the Buyer will pay Coogee for additional storage costs and reimburse Coogee for any demurrage, transport or delivery costs incurred by Coogee, subject to any contrary written agreement contained elsewhere in the Contract.
4. PRICING
(a) Unless otherwise agreed in writing, the price charged for the Goods shall be determined and adjusted in accordance with Coogee’s final pricing letter or offer forming part of the Contract.
(b) The prices of Goods do not include sales, use, excise or any other tax or assessment levied by any federal, state, local or other governmental authority upon the sale or use of the Goods. Without limiting clause 14, Coogee reserves the right to increase the prices for Goods:
(i) at any time upon written notice if any new or amended law, regulation or ordinance (or if Coogee’s compliance with any material change in the rules or policies of the Buyer) results in an increase in the cost of importing, manufacturing, providing, producing, packaging, storing or transporting the Goods to pass through such increase in costs to the Buyer; or (ii) upon 30 days’ written notice in all other circumstances.
(c) The changes contemplated by clause 4(b) shall include a change in, or introduction of, a tax and/or increased costs (including the cost of acquiring permits or credits and the cost of plant modifications or additions) in each case arising in connection with a change in, or the introduction of a scheme for, the management of greenhouse gas emissions or concentrations or management of water usage.
5. SHIPPING
Coogee reserves the right to choose the route and mode of transport. Any additional costs resulting from special shipping requests made by the Buyer shall be borne by the Buyer, as will any additional costs resulting from re-routing a consignment, storage expense, delays at the delivery point that are outside the control of Coogee (demurrage), etc. Unless prepaid freight has been agreed, the Buyer shall also bear any increases in freight rates which become effective after the Contract has been concluded.
6. PAYMENT
(a) Where Coogee grants credit facilities to the Buyer, the Buyer will make payment for the Goods within thirty (30) days after the end of the month in which the Goods are invoiced, unless otherwise indicated on the invoice or otherwise agreed in writing by Coogee.
(b) If the Buyer defaults in payment of any monies due under the Contract or becomes subject to an Insolvency Event, all monies due to Coogee from the Buyer shall immediately become due and payable and Coogee may, at its election, and without prejudice to all other remedies available to it:
(i) withhold further deliveries, suspend the Contract and the performance of its obligations under it, or cancel the Contract; and/or
(ii) open a new account in the name of the Buyer with cash on delivery payment terms.
(c) Coogee shall be entitled to charge interest on all overdue amounts at the Reserve Bank of Australia cash rate plus 6% per annum from the date on which payment was due until payment has been made in full.
(d) The Buyer shall indemnify Coogee in respect of any expense, costs or disbursements incurred by Coogee in recovering any outstanding monies, including debt collection agency fees and solicitor’s costs, and Coogee shall be entitled at any stage during the continuance of the Contract to request such security as Coogee shall in its discretion think fit and shall be entitled to withhold supply of any Goods or credit facilities until such security or additional security shall be obtained.
(e) Notwithstanding any other provision of these general terms and conditions of sale, Coogee may at any time and without being under any duty or obligation to provide reasons for doing so review, alter or terminate the Buyer’s credit facilities or payment terms without notice. The decision of Coogee shall be final and Coogee accepts no liability or responsibility for any loss incurred by the Buyer due to the operation of this provision.
(f) The Buyer shall have no right to withhold payment and counterclaims may only be offset by the Buyer if uncontested or judicially determined.
7. RISK
(a) Unless otherwise agreed in writing, all risk in and to the Goods purchased shall pass to the Buyer upon unloading of the Goods at the Buyer’s premises or such other delivery point agreed to in writing by Coogee.
(b) Without limiting the foregoing, the Buyer warrants that it is familiar with the Goods, methods for their proper handling, use and application, and any associated dangers. The Buyer warrants that all of its employees, contractors or other people to whom it grants access to the Goods including by way of re-sale (individually and collectively, the “Buyer Personnel”) will be fully trained and informed (without reliance on Coogee) regarding the proper storage, handling and use of the Goods, including how to safely and properly respond when any Goods have spilled. (c) The Buyer further warrants that all Buyer Personnel that handle or use the Goods will do so safely in accordance with all applicable laws, regulations, warnings and instructions, and currently accepted industry practice.
8. TITLE
(a) Title to the goods shall not pass to the Buyer until payment in full for all Goods supplied is received in full by Coogee.
(b) Until title in and to the Goods passes to the Buyer in accordance with clause 8(a) the Buyer shall store the Goods separately and in such a manner that they are clearly identified as the property of Coogee. In addition to any rights Coogee may have under Chapter 4 of the PPSA, Coogee shall be entitled at any time until title in and to the Goods passes to the Buyer to demand the return of the Goods and, except where the Buyer is an Individual, shall be entitled without notice to the Buyer and without liability to the Buyer to enter (or have its representatives enter) any premises occupied by the Buyer in order to search for, and remove, the Goods. The Buyer and its representatives shall provide all reasonable assistance to Coogee and its representatives for this purpose. If there is any inconsistency between Coogee’s rights under this clause 8(b) and its rights under Chapter 4 of the PPSA, this clause 8(b) prevails.
(c) The Buyer acknowledges that if it sells, leases or otherwise deals with the Goods or products incorporating the Goods before title in and to the Goods has passed to the Buyer in accordance with this clause 8, it shall hold the proceeds of sale, lease or such dealing on trust for Coogee in a separate account up to the amount owed by the Buyer to Coogee in relation to such Goods.
(d) If title in and to the Goods has not passed to the Buyer in accordance with this clause 8, the Buyer’s implied right to sell, use or consume the Goods in its operations shall immediately terminate upon the happening of an Insolvency Event.
(e) The Buyer acknowledges that it hereby grants to Coogee a security interest (for the purposes of the PPSA) in the Goods as supplied by Coogee hereunder and all proceeds described in clause 8(d) until title passes to the Buyer in accordance with this clause 8.
(f) The security interests arising under this clause 8 attach to the Goods when the Buyer obtains possession of the Goods and not at any later time. Each security interest arising hereunder is a continuing security interest and is not extinguished or in any way diminished even if the Goods or any part of them are processed or comingled with or become part of another product. Such security interests secure the due and punctual payment of all moneys payable to Coogee by the Buyer under the Contract.
9. WARRANTIES AND LIABILITY
(a) Coogee warrants that the Goods supplied will be in accordance with the relevant product specification sheet contained or referenced in the Contract.
(b) Apart from the warranties contained in clause 9(a), to the maximum extent permitted by law, all warranties and guarantees expressed or implied by statute, the common law, equity, trade, custom or usage or otherwise, in relation to the supply of the Goods, are expressly excluded. Where the exclusion of any of the warranties and guarantees referred to in this clause 9(b) would be illegal, Coogee’s liability for breach of such warranty or guarantee is limited in the manner set out below in clause 9(c).
(c) Coogee’s liability for breach of a warranty implied into this Contract by law or other means is limited to performance of any one of the following as determined by Coogee:
(i) the prompt retrieval of the non-compliant Goods at Coogee’s cost and the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair at Coogee’s cost of the Goods or payment of the cost of having the Goods repaired; or
(iii) the payment by Coogee of the cost of replacing the Goods or of acquiring equivalent Goods.
(d) Subject to clause 9(c) and without limiting any other provision in these general terms and conditions of sale, Coogee’s total liability to the Buyer for any claim howsoever arising in connection with the Contract or the supply of Goods, whether based on contract, tort, statute, equity or any other cause, is limited to 100% of the Contract’s price of the Goods to which the claim relates. (e) To the extent permitted by law and notwithstanding anything else in the Contract Coogee excludes all liability whatsoever to the Buyer arising out of or in any way connected with a Contract for any Consequential Loss howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort.
10. NOTIFICATION OF DEFECTS
(a) If the Buyer believes that any Goods do not comply with its order, it must notify Coogee in writing within seven (7) days of delivery of the Goods, together with supporting evidence, samples and packing slips, stating the invoice number, date and any marking on packaging.
(b) If no such notice is provided to Coogee within seven (7) days of delivery, the Goods shall be deemed to be in accordance with the order in all respects and accepted by the Buyer, and the Buyer shall not be entitled to exercise any rights under clause 9.
11. ADVICE
(a) The Buyer hereby acknowledges that:
(i) it has not relied on any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by Coogee in relation to the Goods or their use or application; and
(ii) it is responsible for ensuring that Goods that comply with the warranties in clause 9(a) are fit and suitable for its purposes, requirements, processes, plant and equipment.
12. ACCESS
The Buyer will provide Coogee with access to all areas of the Buyer’s site necessary for delivery of the Goods. The Buyer shall control the Buyer’s employees and other contractors and subcontractors sufficiently to ensure non-interference with delivery of the Goods by Coogee.
13. FORCE MAJEURE
(a) Deliveries may be totally or partially suspended by Coogee during any period in which Coogee may be prevented or hindered from import, manufacture, delivery or supply through any circumstances outside Coogee’s reasonable control or where such import, manufacture, delivery or supply is rendered materially more expensive by such circumstances.
(b) Circumstances beyond Coogee’s reasonable control shall include, without limitation, strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, inputs, equipment, facilities or services on usual terms, epidemics or pandemics, power or water shortage, accidents or breakdowns of plant or machinery, delays, congestion or blockages at any sea ports or transport depots, or disruption to software, hardware or communication network. Coogee shall not incur any liability to the Buyer in respect of such suspension. However, a force majeure event does not include any inability (for any reason whatsoever) to pay or make payment.
14. TRANSACTION TAX
Where a transaction tax, including a goods and services tax (“GST”) and any transaction taxes that come into existence after the date of these general terms and conditions of sale, applies to any supply made under these general terms and conditions of sale, Coogee may recover from the Buyer an additional amount on account of that transaction tax.
15. CHANGE OF LAW
Without limiting clause 14, if any of Coogee’s costs of:
(a) manufacturing, importing, supplying or transporting the Goods; or
(b) procuring raw materials, services or inputs directly related to the activities in (a), increase as a result of compliance by Coogee, Coogee’s affiliates and related bodies corporate, or third parties, with:
(c) the introduction of or any change (including a change in interpretation) in any federal, state, local or other law or regulation or order, including any introduction of or a change in a tax; or
(d) any introduction of, or change in, a scheme for management or reduction of greenhouse gas emissions or concentrations, or water use conservation or management,
then Coogee may, by notice to the Buyer, increase the price for the Goods to the extent required to pass through such increased costs (which may include, without limitation costs of acquiring permits or credits or costs of required plant modifications or additions). Such cost increase shall take effect immediately from the date such notice is provided.
16. TERMINATION
(a) Coogee may terminate the Contract immediately or suspend performance if the costs incurred by Coogee in performing its obligations under the Contract exceed the amounts paid by the Buyer to Coogee for Goods supplied under this Contract.
(b) Coogee may terminate the Contract at any time, and for any reason, by giving the Buyer four weeks’ notice.
17. COMPLIANCE WITH LAWS
The Buyer must comply with all applicable laws, regulations, industry standards and codes of conduct in Australia and any other relevant jurisdiction in relation to all matters contemplated (whether expressly or implicitly) by these general terms and conditions of sale.
18. MODERN SLAVERY ACT 2018 (CTH)
Coogee at all times acts ethically, transparently and with integrity in all business dealings and relationships. The Company has a zero-tolerance approach to modern slavery and is committed to implementing and enforcing effective systems and controls to reduce the risk of modern slavery practices within operations and supply chains.
19. CONFIDENTIALITY
(a) These general terms and conditions of sale and the provisions of all Contracts are confidential and must not be disclosed by the Buyer to any third party without Coogee’s prior written consent unless such disclosure is required by law (other than section 275(1) of the PPSA).
(b) The parties agree that the provisions of this clause 19 amount to a “confidentiality agreement” referred to in section 275(6) of the PPSA.
20. ASSIGNMENT
Any Contract to which these general terms and conditions of sale apply is not assignable or transferable by the Buyer in whole or in part, except with prior written consent of Coogee and any purported assignment without such consent shall be void.
21. WAIVER
No waiver of a right or remedy by Coogee is effective unless it is in writing and signed by Coogee. A single or partial waiver or exercise of a right or remedy by Coogee does not prevent a further exercise of that or of any other right or remedy. Failure to exercise or delay in exercising a right or remedy by Coogee does not operate as a waiver or prevent further exercise of that or any other right or remedy by Coogee.
22. SEVERANCE
Any provision of these general terms and conditions of sale which is void or unenforceable is to be read down or severed to the extent it is possible to do so without affecting the validity or enforceability of these general terms and conditions of sale. The invalidity or enforceability of one or more of the provisions of these general terms and conditions of sale will not invalidate, or render unenforceable, the remaining provisions of these general terms and conditions of sale.
23. GOVERNING LAW
The supply of Goods under these general terms and conditions of sale is governed by the laws of the State of Western Australia and Coogee and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of Western Australia.
24. ENFORCEMENT OF SECURITY INTERESTS
If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interests created under this Contract, the Buyer agrees that the provisions referred to in section 115(1) of the PPSA are hereby contracted out of by the parties and will not apply.
25. NOTICES UNDER PPSA
Coogee does not need to give the Buyer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
26. UPDATES TO GENERAL TERMS AND CONDITIONS OF SALE
Coogee may change these general terms and conditions of sale from time to time. These general terms and conditions of sale may change from time to time and it is the Buyer’s obligation to ask Coogee to provide a copy of the most up to date general terms and conditions of sale at the time the Buyer enters into a Contract. By entering into a Contract after the date upon which the new general terms and conditions of sale become effective the Buyer accepts and is bound by the changed general terms and conditions of sale for that Contract and future Contracts. If the Buyer does not accept the changes to the general terms and conditions of sale, it may notify Coogee to close its account. No amendment or variation of the Contract, other than amendment or variation to the general terms and conditions of sale as set out in this clause 265, is valid or binding on a party unless made in writing and executed by both parties.
27. EXCLUSION OF UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the supply of Goods under these general terms and conditions of sale.
28. DEFINITIONS
In these general terms and conditions of sale:
“Buyer” means the person to whom any quotation is made, any person offering to contract with Coogee on these general terms and conditions of sale and any person who purchases Goods from Coogee;
“Consequential Loss” means any:
loss which does not arise naturally or in the usual course of things from the matter giving rise to the claim; and
any (whether direct, indirect or consequential or otherwise):
loss of profit or anticipated profit;
loss of business or opportunity;
loss of contracts or anticipated contracts;
loss of goodwill or reputation;
loss arising from business interruption;
loss of revenue or anticipated revenue;
loss of or delay to production;
loss arising from increased operating or overhead costs; or
special damages,
arising out of or in connection with this Contract incurred or suffered by a party, or any other person, even if such loss arises naturally or in the usual course of things from the matter giving rise to the claim.
“Coogee” means Coogee Chemicals Pty Ltd ABN 37 008 747 500.
“Contract” means Coogee’s supply proposal or pricing letter to which the supply of the Goods relates, as updated in writing by the mutual agreement of the parties, the attachments (if any) to that letter and these general terms and conditions of sale.
“Corporations Act” means Corporations Act 2001 (Cth).
“Goods” means all products, services and equipment agreed to be supplied by Coogee to the Buyer under any contract, arrangement, understanding between Coogee and the Buyer (including pursuant to a supply proposal or quotation accepted by the Buyer);
“Individual” means a Buyer who is a natural person;
“Insolvency Event” means any of the following happen in relation to the Buyer:
(a) a liquidator, receiver, receiver and manager, administrator, official manager or other controller (as defined in the Corporations Act), trustee or controlling trustee or similar official is appointed over any of the property or undertaking of the party;
(b) the party is, or becomes unable to, pay its debts when they are due or is or becomes unable to pay its debts within the meaning of the Corporations Act, or is presumed to be insolvent under the Corporations Act;
(c) the party ceases to carry on business;
(d) the Buyer being an Individual commits an act of bankruptcy;
(e) an order is made for the liquidation of the party or a resolution is passed or any steps are taken to liquidate or pass a resolution for the liquidation of the party, otherwise than for the purpose of a solvent amalgamation or reconstruction.
“Person” means an Individual and a corporation;
“PPSA” means the Personal Property Securities Act 2009 (Cth).