General Conditions of Sale

1.              CONTRACT FORMATION

1.1           All oral and written quotations by KegMobil Australia Pty Ltd ABN 19 105 351 237 (“Seller”) are invitations to purchase only.

1.2           A Buyer’s order is an offer to purchase the goods and/or services (“Goods”) specified in the quotation and is subject to:

(a)           these General Conditions of Sale (“GCS”);

(b)           the terms on any written quotation;

(c)            the Seller’s current price lists (“Price List”); and

(d)           the Seller’s current freight policy (“Freight Policy”).

1.3           The terms of any written quotation will prevail in any case of conflict.

1.4           The Seller may vary these GCS, Price List or Freight Policy at any time and without notice.  The Seller will send a Buyer a copy of the current GCS, Price List and Freight Policy at no cost upon the Buyer’s request.

1.5           A binding contract is created at the earlier of when the Seller supplies the Buyer the Goods, a written order acknowledgement or an invoice.

2.              PRICE

2.1           The price of the Goods will be Goods and Services Tax (“GST”) exclusive (unless otherwise stated).

2.2           Without limiting GCS 1.4 or 1.5, the Seller may increase the price of the Goods at delivery due to (without limitation) variations in exchange rates, costs of labour, transport, freight, insurance, duty, imposts and cost of materials incurred or arising between the date of quotation or the order (as applicable) and the date of delivery.

2.3           At the Buyer’s written request and reasonable expense, the Seller will provide reasons for the increase in the price of the Goods and/or substantiation by an Arbitrator pursuant to GCS 10.

3.              PAYMENT & CREDIT TERMS

3.1           The Buyer will pay the price of the Goods together with any GST without any deduction, offset or counterclaim (of any kind) no later than 7 days from the day of invoice (unless otherwise agreed in writing).

3.2           If GST is payable in respect of the supply of the Goods, the Seller will issue the Buyer a valid tax invoice.

3.3           Any amount not paid on time will:

(a)           be a debt payable by the Buyer together with interest charged at the rate specified under section 2 of the Penalty Interest Rates Act 1983 (Vic); and

(b)           permit the Seller to cancel or suspend delivery of any other Goods and resume possession of the Goods under GCS 6.

4.              DELIVERY OF GOODS

4.1           All delivery times are estimates only and the Seller denies any liability for delays in delivery (due to any reason or any cause).

4.2           The Seller will not be responsible for any failure to perform the terms of these GCS due to circumstances beyond the Sellers control including under the legal doctrine known as “force majeure”.

4.3           Delivery of the Goods (whether in Australia or elsewhere) will be in accordance with the Seller’s Freight Policy (unless otherwise stated).

5.              RETURNS & CANCELLATIONS

5.1           Custom-made equipment will not be accepted on return.

5.2           The price of Goods returned are received by the Seller within 30 days of the date of sale will be refunded, provided the returned Goods are in the same condition as received.  The Seller can charge a 10% administration fee for all returned Goods accepted back for credit.

5.3           The Buyer will pay the Seller the greater of either a 10% administration fee on the price of the Goods or the Seller’s reasonable cost in performing the contract to the date that the Buyer purports to terminate, repudiate or cancel the contract.

6.              RESERVATION OF PROPERTY IN GOODS & RISK

6.1           Until the whole of the price and any GST in respect of the Goods has been paid:

(a)           property in the Goods will remain vested in the Seller (even if mixed with or constituted into other property);

(b)           the Buyer will be bailee only in respect of the Goods;

(c)            the Buyer must continually keep the Goods separate and identifiable;

(d)           the Buyer will hold the proceeds of any disposal of the Goods to a third party (to the extent necessary to pay the price and any GST in respect of the Goods) in trust for the Seller and will immediately pay the price and any GST in respect of the Goods to the Seller (whether or not any period of credit has expired);

(e)           the Seller may, at the Buyer’s expense, resume possession of the Goods without notice if the Seller considers (in the Seller’s absolute discretion) that the Buyer is or may become insolvent, has committed an act of bankruptcy pursuant to the Bankruptcy Act 1966 (Cth) or an act of insolvency pursuant to the Corporations Act 2001 (Cth) or that the Goods might be destroyed, damaged, endangered, or removed from the Buyer’s normal place of business; and

(f)            the Seller’s employees or agents are authorised to enter the Buyer’s premises at which the Seller believes the Goods to be housed to inspect the Goods at all reasonable times and to resume possession of the Goods at any time.

6.2           If the Seller resumes or is entitled to resume possession of the Goods (for any reason):

(a)           any terms of credit will immediately terminate (without further notice); and

(b)           all amounts payable by the Buyer to the Seller under any contract for the supply of Goods will become immediately payable (without further notice); and

(c)            the Seller may refuse to supply any other current or future orders without compensation.

6.3           Despite that property in the Goods may not have past to the Buyer, the Goods will be at the Buyer’s risk in all respects from the time the Goods leave the Seller’s premises.

6.4           The Buyer must continually insure the Goods from the date risk passes until the whole of the price and any GST in respect of the Goods has been paid.

7.              PERMITS LICENSES & APPROVALS

7.1           The Buyer will (at the Buyer’s sole cost) obtain and maintain any permits, licenses or approval necessary or required in connection with the Goods.

8.              PERFORMANCE, DIMENSIONS & OTHER DESCRIPTIVE DETAILS

8.1           Any capacity or performance figures given by the Seller in relation to the Goods are given in good faith based on unverified information supplied to the Seller.  The Seller does not guarantee the capacity, performance or fitness for purpose of the Goods.  The Buyer is solely responsible for ensuring that the capacity and performance of the Goods are sufficient and suitable for the Buyer’s purposes.

8.2           Any description of the Goods by the Seller is for the purpose of identification and does not constitute a contract of sale by discription.

8.3           Any details including photographs, illustrations, drawings, weights, dimensions and other particulars given in or accompanying the quotation are subject to alteration without notice.

8.4           The Trade Practices Act 1974 (Cth) and certain State and Territory legislation may imply certain conditions and warranties into the supply of the Goods and these GCS.  To the extent permitted by law:

(a)           such conditions and warranties are expressly excluded or reduced to their minimum operation; and

(b)           the Seller’s liability for breach of warranty or misleading or deceptive conduct or otherwise under that legislation will be limited solely to the price paid for the Goods

8.5           To the extend permitted by law, the Seller is not be liable for any loss, damage or injury (of any kind or any cause) arising directly or indirectly from the Seller’s negligence, the Buyer’s use of the Goods or breach by the Seller of any of these GCS.

9.              INDEMNITIES

9.1           The Buyer will continually indemnify the Seller for any additional out goings including (without limitation) storage, insurance and transport costs arising from the Buyer failing to accept delivery of the Goods.

9.2           The Buyer will continually indemnify the Seller for all legal fees and disbursements (on a solicitor and own client basis) the Seller incurs by the Buyer failing to accept delivery of the Goods, in resuming possession of the Goods under GCS 6 and enforcement costs for non-payment.

9.3           The Buyer will continually indemnify the Seller against all loss, damage or injury (of any kind or any cause) arising directly or indirectly from :

(a)           the use of the Goods; or

(b)           where the Seller has modified the Goods in accordance with the Buyer’s design or instructions, any infringement or alleged infringement of any patent, trade mark, copyright, design or common law right.

10.          ARBITRATION

10.1        A party may by written notice refer a dispute about any matter relating to concerning or arising out of these GCS to arbitration by an Arbitrator appointed by the President (or his or her delegate) of the Law Institute of Victoria (or its successor).

10.2        A party must refer a matter to arbitration and participate in the arbitration in good faith for a minimum of 5 days before that party may commence court proceedings.  The Arbitrator may waive in writing this participation requirement.

10.3        The arbitration will be conducted in accordance with the Commercial Arbitration Act 1984 (Vic), except that a party may be represented by a lawyer or other representative and the Arbitrator will not have the power conferred by Sections 25 and 27 of the Commercial Arbitration Act 1984 (Vic).

11.          MISCELLANEOUS

11.1        Time is of the essence in respect of the Buyer making payment for any Goods.

11.2        These GCS, the terms of any written quotation and the Price List constitute all the terms agreed between the parties and supersedes all prior dealings and agreements between the parties relating to the Goods

11.3        The Seller’s consent or power may be given or exercised in the Seller’s absolute and unfettered discretion.

11.4        Any waiver or variation of these GCS must be in writing signed by the Seller.  A waiver of any breach of these GCS will not affect any other rights and remedies in respect of any other breach of these GCS.

11.5        A legislative or regulative amendment will not limit a term of these GCS, unless application of the law is mandatory.

11.6        A part of these GCS that is illegal, unenforceable or inoperative must be read down to the extent necessary so that it is operational or must be severed from these GCS if it cannot be read down.

11.7        The laws and Courts of Victoria and the Commonwealth of Australia apply to these GCS.