Terms & Conditions

Application of Terms and Conditions

These terms and conditions of sale apply to and govern all tenders and quotations submitted by, all orders placed with, and all contracts entered into by Kilby Park Tree Farm Pty Limited ACN 134 851 764 (“KPTF”) whereby goods and/or services are supplied, provided and/or delivered (“supply” or “supplied”) by KPTF (“Agreement”).

Any Agreement may be varied only with KPTF’s prior written consent.

To the extent that any conflict exists between these terms and conditions of sale, or as they may be varied in accordance with this clause, and any other documentation or correspondence forming part of any agreement, these terms and conditions of sale shall prevail.

Any order or offer made by any purchaser shall not be binding on KPTF until accepted by KPTF in writing, including but not limited to the issuing of an invoice by KPTF, or in such manner as KPTF in its sole discretion determines.

A tender or quotation submitted by KPTF may at any time prior to acceptance of an offer by KPTF in respect of the supply of goods and/or services be varied or withdrawn by KPTF. Clerical, typing or other errors made in, or in respect of, any tender or quotation shall be subject to correction by KPTF and the corrected tender or quotation shall apply.

To the extent that there is any inconsistency between any terms and conditions appearing in a purchaser’s order or any other document and these terms and conditions of sale, these terms and conditions shall apply. Acceptance by a purchaser of the supply by KPTF of goods and/or services shall constitute acceptance by the purchaser of such supply solely on these terms and conditions of sale.

This Agreement replaces and supersedes in their entirety any previous communications, representations, inducements, undertakings, agreements, arrangements and terms and conditions of sale published, issued or used, whether in writing or otherwise, between KPTF or any division or subsidiary of KPTF and the purchaser or their respective officers, employees or agents in respect of the supply of goods and/or services by KPTF.

In this Agreement, unless the context requires otherwise, “GST” means Goods and Services Tax or other tax that is substituted or replaces the GST tax. “The purchaser” means any person or persons, company or business entity to whom KPTF sells or supplies, or proposes to sell or supply, goods or services. “Goods” means the goods or products supplied or sold by KPTF to the purchaser from time to time. “Services” means any services provided by KPTF.

Period of the Quotation or Tender

Subject to clause 1(e), a quotation or tender submitted by KPTF shall remain valid for 30 days from the date of such quotation or tender.

Price

The prices quoted by KPTF in the price list for the supply of goods exclude, as appropriate but subject to the other provisions of this clause, the cost of transport to the agreed place of delivery and maintenance costs.

The prices quoted by KPTF for the supply of goods and/or services exclude goods and services tax (“GST”) and the purchaser must also pay to KPTF an additional amount in respect of the impact of GST on KPTF, calculated by multiplying the price by the prevailing GST rate.

A delivery service can be provided by KPTF to the Melbourne metropolitan area, being an area no greater than 20km from KPTF located at 8 Minogue Street, Kew East, Victoria, 3102, at a reasonable cost to the purchaser with prices varying depending on the size of the order and delivery location. Deliveries outside the Melbourne metropolitan area or interstate can be organised with prices made available upon application by the purchaser. It is essential that there is a point of contact at the delivery site, which must be communicated to KPTF at least 24 hours prior to the driver’s arrival.

Any additions or increases in the cost of the supply of goods and/or services as a result of any additions or increases in charges, taxes, including the rate of GST, or costs associated with manufacture or supply of goods and/or services by KPTF, including without limitation increases due to variations in exchange rates, the cost of materials or labour and/or the cost of conforming with any relevant legislation, court orders, regulations or bylaws, between the date of KPTF’s relevant quotation or tender or, where there is no such quotation or tender, from the date of KPTF’s acceptance of the purchaser’s order and the date of supply of the relevant goods and/or services shall be borne by the purchaser.

Any credit card fees or bank charges associated with any payment by the purchaser to KPTF for goods and/or services shall be borne by the purchaser.

The prices quoted by KPTF shall only apply to the specific goods and quantities of goods specified in such quotation or tender or accepted order.

Unless otherwise stipulated, all references to dollars are references to the lawful currency of Australia.

Payment

The purchaser shall be invoiced at either the time of acceptance by KPTF of an offer or order placed by a purchaser, immediately prior to delivery of goods or supply of services, or as KPTF in its sole discretion considers appropriate. Unless contrary arrangements are made in writing, all invoices issued by KPTF are payable in full together with any other amounts payable under this Agreement on or before delivery by way of cash, Visa, Mastercard, Bankcard or direct deposit. A reference in this clause to “delivery” includes collection by or on behalf of a purchaser.

Cheque payments will only be accepted if the funds are cleared by KPTF’s bank three working days prior to dispatch of the goods. Cheque payments will not be considered payment in full until they have been cleared in KPTF’s bank account. For direct deposits, a faxed copy of the lodgement receipt must be received by KPTF prior to the dispatch of goods.

Where KPTF has confirmed in writing that payment on or before delivery is not required for particular orders, then unless otherwise agreed in writing, all such orders shall be due and payable within 30 days of the date of invoice issued for those orders, or as KPTF in its sole discretion considers appropriate. Any invoices for orders or other amounts payable that remain unpaid outside KPTF trading terms will attract penalty interest.

The purchaser shall pay interest to KPTF on all monies outstanding from the date that is 30 days after the date of invoice or, for a purchaser who has a line of credit or account with KPTF, 30 days after the date of statement or account issued by KPTF. Interest will be calculated at monthly rests at the maximum per annum Reference Lending Rate published by the Commonwealth Bank of Australia Limited from time to time on the interest date plus 2%. Payments received by KPTF shall be credited first against any interest accrued. At the option of KPTF, interest may be capitalised monthly. Interest on overdue amounts shall not merge with interest recoverable under a judgment in respect of an action for any overdue account monies.

The purchaser shall not set off or deduct from any amount payable to KPTF under any agreement any amounts payable by KPTF to the purchaser under these terms and conditions of sale or any agreement.

Any costs incurred by KPTF in relation to the engagement of debt recovery agencies for outstanding monies will be charged to and recoverable in full from the purchaser.

Credit

Any purchaser wishing to trade with KPTF on any form of credit must fully read and agree to the terms of this Agreement, complete the application for credit form used by KPTF from time to time in a true and accurate way, and return it to KPTF.

KPTF may agree to provide credit or may decline to provide credit to the purchaser without reasons.

All financial and other information provided by the purchaser to KPTF must be fully accurate and up to date. The purchaser acknowledges, confirms and agrees that KPTF will rely upon all information provided to it. KPTF is authorised to make all enquiries about the purchaser in relation to their application for credit and their continued request for credit from time to time.

Any purchaser who is a corporation agrees that its directors and/or shareholders may, at KPTF’s discretion, be required to guarantee the purchase of any goods and/or services from KPTF and agrees to provide such a guarantee if the purchaser executes the relevant application for credit form used by KPTF from time to time. Where the purchaser is a natural person, the purchaser warrants and declares that the credit provided is to be applied wholly or predominantly for business or investment purposes, or for both purposes, and not for personal, domestic or household purposes.

Disruption to supply without liability to KPTF will occur if the purchaser’s account is overdue at any time, whether in whole or part, or the credit limit is exceeded. In this case, the account may be placed on hold at the sole discretion of KPTF. Any acceptance by KPTF of payment or part payment by the purchaser shall not prejudice KPTF’s rights in relation to recovery of any other unpaid monies owing by the purchaser to KPTF.

Delivery

Unless otherwise agreed, where the purchaser has nominated in writing an address to KPTF, KPTF shall deliver the goods to the nominated address.

KPTF shall not be responsible for unloading goods at the point of delivery.

Where goods are to be delivered to a nominated address, KPTF shall be deemed to have delivered the goods in accordance with the contract if it obtains a receipt or signed delivery docket for the goods from any person at that address.

If a nominated address is unattended, or if delivery cannot otherwise be effected, or the goods cannot be dispatched due to any act, matter or thing beyond the control of KPTF, KPTF may store the goods at the purchaser’s risk and expense or take such other steps as it considers appropriate.

KPTF reserves the right to refuse to supply goods and/or services under an agreement if a purchaser is in default of any of its payment obligations under any one or more Agreements.

KPTF reserves the right to choose or vary the means, route and procedure of delivery, transport and handling of goods. If the purchaser requires a different means, route or procedure, the cost of delivery shall be borne by the purchaser.

KPTF may supply goods and/or services in instalments and these terms and conditions of sale shall apply to each supply of goods and/or services by instalments as if each instalment constituted supply under a separate agreement. The purchaser shall pay KPTF for each instalment of goods and/or services supplied, regardless of any failure or delay in the supply of any other instalment.

The risk of loss or damage to goods shall pass to the purchaser at the time of delivery or when the purchaser is notified that the goods are available for dispatch.

KPTF shall make all reasonable efforts to meet any date for supply of goods and/or services agreed between KPTF and the purchaser. Where a delay in supply is caused by any act, matter or thing beyond the control of KPTF, including without limitation a variation requested by the purchaser, the time for supply shall be extended by a period agreed between KPTF and the purchaser or, failing such agreement, by a reasonable period. In no event shall KPTF incur any liability due to any failure to supply goods and/or services by an agreed date.

KPTF may in its discretion supply goods and/or services prior to any agreed date for such supply, including any extensions of that date.

Hold orders are orders placed by the purchaser but held or stored by KPTF for a period before they are dispatched for delivery to the purchaser. Stock will be held for a period of one month at no cost to the purchaser from confirmation of the order.

If, at the time of placing an order, a purchaser requires KPTF to retain any or all of the goods beyond the free holding period, a deposit of 50% of the total invoice value is required at the time of placing the order.

At the expiration of the free holding period, a deposit of 50% of the total invoice value is payable on or before close of business on the day after expiry of the free holding period unless already paid. A holding fee equal to 5% of the total invoice value will also be charged to the purchaser as a maintenance fee. This fee is charged on the first day of each calendar month commencing on the first day of the month immediately following expiry of the free holding period and is due on the first day of each such month or prior to dispatch, whichever comes first.

Goods will not be held beyond one day after expiry of the free holding period unless a 50% deposit has been received by KPTF on or before the close of business on the day after expiry of the free holding period.

Orders will only be held for a maximum of three months from confirmation of the order, including the free holding period. If the goods are not delivered or collected by or on behalf of the purchaser prior to the expiry of the three months, the order shall be deemed cancelled and the goods deemed abandoned by the purchaser. If an order is cancelled, the deposit and maintenance fee are non-refundable as this covers losses including but not limited to the cost of lost business due to an inability to supply other purchasers.

The balance of the total invoice price and any other amounts due are payable in accordance with the payment terms of this Agreement.

Claims

No claim in relation to damaged goods or shortage of volume, length, quantity or weight may be made unless such claim is made by the purchaser in writing to KPTF within seven days of delivery of the goods to the purchaser.

KPTF’s only liability for any such loss or damage shall be, in its sole discretion, to replace or repair goods lost or damaged or pay for such goods to be replaced or repaired.

Goods may only be returned for credit upon the written agreement of KPTF. Written notification of a request for credit must be received by KPTF management within seven days of delivery of the goods to the purchaser. In all cases, the original invoice or delivery docket must be quoted and return freight must be prepaid by the purchaser.

Goods specifically ordered by KPTF for the purchaser will not be accepted for credit.

KPTF reserves the right to charge a restocking fee on goods accepted for credit.

All goods returned for credit must be in their original pack and in a completely resalable condition.

KPTF reserves the right to impose special conditions on the return of stock.

Packing

KPTF uses and at all times retains ownership of “Rocket Pots ©” air pruning containers, which are used to grow a majority of its advanced trees. Where any products are delivered in Rocket Pots ©, KPTF requires that all Rocket Pots © be returned to KPTF at 8 Minogue Street, Kew within 60 days from the date the purchaser receives the goods. Failing this, the purchaser will be required to pay KPTF on demand the replacement cost of the same quantity of Rocket Pots © the purchaser failed to return within the 60 days.

If the purchaser wishes to retain the Rocket Pots ©, they can be purchased from KPTF for an additional cost, which will be provided once written application is made by the purchaser to KPTF. If the purchaser requires the goods to be provided in any other manner, the cost of the packing shall be the responsibility of the purchaser.

Warranty

Subject to clause 9(b), KPTF warrants that goods or services supplied by it will be true to name and of good health at the earlier of the time of collection by or on behalf of the purchaser or delivery.

Where the stock purchased does not meet the criteria above, then on receipt of a claim which must be lodged immediately on delivery of the goods and by no later than one business day after delivery, KPTF will, at its discretion, replace the goods and/or refund the purchase price.

The purchaser shall immediately notify KPTF in writing of any defect in the goods supplied by KPTF. The purchaser shall not carry out any remedial work to allegedly defective goods without first obtaining the written consent of KPTF to do so. The provisions of this clause do not constitute a warranty in relation to the quality or fitness of the goods, or require KPTF to repair or replace goods, or offer a refund in relation to goods, in circumstances other than those set out in Australian Consumer Law to the extent that the Australian Consumer Law applies to the goods.

The warranty does not apply to goods affected by any conditions beyond the control of KPTF, including but not limited to watering, soil preparation, drainage, planting and handling procedures, mulching, insect damage, site suitability, climate and weather. No warranty is given in respect of plant growth or description. Responsibility and liability for the goods ends for KPTF when goods are received and accepted by the purchaser.

The warranty also does not apply where the defect arises from any act, matter or thing beyond the control of KPTF, where the goods are or become the subject of any product or safety recall, where the purchaser has in any way modified, serviced or repaired the goods without KPTF’s prior written consent, where the purchaser has not complied with any written or oral instructions from KPTF concerning the planting and storing of the goods, or where the purchaser is in default in the observance or performance of any other provisions of the Agreement to which such goods relate.

The goods shall be warranted by KPTF only to the extent that they are warranted by the supplier or manufacturer of them and KPTF is able to pass on the benefit of such warranty to the purchaser. The period of such warranty shall not in any event exceed the applicable period set out in this Agreement. The purchaser must address issues relating to a manufacturer’s warranty with the manufacturer on the terms of that warranty.

Subject to this Agreement, KPTF warrants that any services supplied by it shall be provided with due care and skill and that any materials supplied in connection with those services will be reasonably fit for the purpose for which they are supplied.

Where permitted by law, the warranty will not apply where the goods are or become the subject of any product or safety recall, where KPTF’s ability to supply services is adversely affected by defects in any materials supplied by the purchaser, a design or drawings provided by the purchaser, any act, matter or thing beyond the reasonable control of KPTF, or where the purchaser is in default in the observance or performance of any provision of the Agreement to which such services relate.

Where the purchaser acquires goods under an agreement for the purpose of resupply, including by way of hire or rental, to a consumer within the meaning of the Australian Consumer Law, the purchaser shall ensure that at or before the time such goods are acquired by the consumer, it has provided the consumer a written notice of the current period, if any, during which KPTF’s warranty in respect of such goods is available to the consumer.

Subject to this Agreement, where the agreement is for the supply of goods, KPTF may at its option repair or replace defective goods at its own expense but shall have no liability for the cost of delivery to KPTF, the removal of the defective goods, or the cost of reinstallation of the goods.

Limitation of Liability

Subject only to clauses 6, 8 and 9(c), and notwithstanding any other provision of this or any agreement or otherwise, if any liability on the part of KPTF arises to or in favour of the purchaser, whether in contract, tort or otherwise, for any loss, damage, harm or injury arising out of or in any way connected with the supply of or failure in the provision of goods and/or services by KPTF, KPTF’s liability for all such loss, damage, harm or injury in all and any circumstances shall be limited in aggregate to the payment by KPTF of a sum not exceeding 5% of the monies payable to KPTF pursuant to the relevant agreement under which the goods and/or services were supplied.

Any purchaser of goods or services from KPTF agrees to release, hold harmless and indemnify KPTF, its officers, employees, servants, agents, contractors, successors, heirs and assigns from and against all liabilities, claims, damages, losses, costs and expenses of whatsoever nature and howsoever occurring, including without limitation loss of market, loss of profit, loss of use, loss of production, or any financial or economic loss including indirect or consequential loss or damage, which may be suffered by the purchaser or by any third party arising out of or in any way connected with the supply of the goods or the performance of services by KPTF.

Except as otherwise expressly provided in these conditions and subject to clause 10(d), all statements, representations, provisions, conditions, promises, undertakings, covenants and other provisions, express or implied, relating to any quotations or tenders submitted by KPTF, orders accepted by KPTF, goods and/or services or their supply, are hereby excluded in their entirety and are of no effect whatsoever.

The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law guarantee certain conditions, warranties and undertakings, and give the purchaser other legal rights in relation to the quality and fitness for purpose of consumer goods sold in Australia. These guarantees cannot be modified or excluded by any contract. Nothing in these terms and conditions purports to modify or exclude any conditions, warranties, guarantees, undertakings or other legal rights under the Australian Consumer Law and other laws which cannot be modified or excluded.

Except as expressly set out in this Agreement and the Australian Consumer Law, KPTF makes no warranties or other representations under this Agreement. KPTF’s liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.

For the avoidance of doubt, these terms and conditions of sale do not exclude, restrict or modify the application in relation to the supply of goods and/or services of any provision of the Australian Consumer Law, the exercise of any right conferred by any such provision, or any liability of KPTF for breach of a condition or warranty implied by any such provision.

Without limiting this Agreement, where KPTF sells goods to the purchaser and the purchaser purchases them as a consumer, the Australian Consumer Law provides certain guarantees in relation to the goods.

KPTF’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. The purchaser is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The purchaser is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

Where KPTF is permitted under the Australian Consumer Law to limit its liability for breach of a condition or warranty, KPTF’s liability shall be limited at KPTF’s sole discretion to the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods, the payment of the cost of having the goods repaired, the supply of the services again by KPTF, or the payment of the cost of having the services supplied again.

To the full extent permitted by law, the purchaser acknowledges that it relies on its own skill and judgment in relation to goods and/or services supplied to it by KPTF. KPTF shall be under no liability for any unsuitability for any purpose of the goods irrespective of any knowledge which it may possess as to the purpose for which the goods were required by the purchaser unless that purpose has been specifically notified to KPTF in writing prior to the formation of the relevant agreement.

All liability of KPTF shall cease at the end of the warranty period as stated in this Agreement and no claim shall be made against KPTF after that date.

To the extent permitted by statute, all warranties, conditions and guarantees, whether express, implied or applied, and any obligation of KPTF to repair or replace any goods are void in respect of any goods which the purchaser tampers with or alters.

In this clause, “consumer” means a person acquiring goods of a kind ordinarily acquired for personal, domestic or household use or consumption, a person acquiring goods at a price not exceeding $40,000, or where the goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads. This excludes a person acquiring the goods, or holding themselves out as acquiring the goods, for the purpose of resupply or using them up or transforming them in trade or commerce, in the course of a process of production or manufacture, or in the course of repairing or treating other goods or fixtures on land.

Passing of Title

Notwithstanding that the purchaser has possession of the goods, title to the goods remains with KPTF and no legal or equitable interest or property in the goods will pass to the purchaser until the full amount for the goods has been paid to KPTF, there is no money owing by the purchaser to KPTF for any other goods delivered by KPTF or on any account whatsoever, and the purchaser has met all other obligations due by the purchaser to KPTF.

Payment is not deemed to have occurred until funds have cleared in KPTF’s account.

Until title and property in the goods passes, the purchaser must hold the goods as bailee for KPTF, mark the goods or store them separately, and keep all necessary records so that the goods can at all times be identified and distinguished as the property of KPTF. The purchaser must refrain from mixing or intermingling the goods with any goods owned by the purchaser or by any other person.

The purchaser acknowledges that a fiduciary relationship exists between the purchaser and KPTF whereby the purchaser holds the goods, services and/or any other proceeds, rights and claims to the goods and/or services, or any new product created by the purchaser using the goods and/or services, in a fiduciary capacity for KPTF.

Where title and property in any particular goods has not passed, the purchaser may nevertheless dispose of those goods to a bona fide sub-purchaser provided such disposals are in the ordinary course of the purchaser’s business and no event as specified in clause 14(a) has occurred. The purchaser must not deal with those goods if both conditions are not met. By disposal of such goods, the purchaser assigns to KPTF all monetary proceeds received by or on behalf of the purchaser in respect of the goods.

The purchaser must maintain records of all disposals of the goods and permit inspection of these records by KPTF promptly upon request. The purchaser must hold the assigned proceeds on trust for KPTF and separate from its own monies, and must account to KPTF for those proceeds. The total debts owing by the purchaser to KPTF will be reduced by the proceeds of sales for which the purchaser has accounted to KPTF. If these proceeds exceed the total debts owing by the purchaser to KPTF at any time, the purchaser is entitled to receive an amount equivalent to this excess as commission.

If the purchaser produces a product that utilises or incorporates any of the goods as a component of the product, the terms of this clause regarding title and proceeds will apply. Where goods can be removed from the product without destroying or seriously injuring the goods or other components of the product, the terms apply to the relevant goods without modification, except references to proceeds are to be read as references to the portion of each product’s proceeds attributable to the value of the incorporated good.

Where goods cannot be removed from the product without destroying or seriously injuring the goods or other components of the product, KPTF becomes a co-owner of the product at the time the relevant goods are incorporated into the product. KPTF’s co-ownership share is in the proportion that the value of the goods bears to the value of the other components of the product.

In the event that the purchaser fails to make payment to KPTF in accordance with this Agreement, or if the purchaser is a company which has made an application for and been granted a line of credit with KPTF and commits any breach of the terms of that credit application, KPTF may revoke the right of the purchaser to sell, dispose of, deal with or use the goods and/or services. KPTF may request the purchaser to immediately deliver any goods and/or services in its possession or control directly to KPTF, or take possession of the goods and/or services from the purchaser in whatever manner it thinks fit, without prejudice to any other rights or remedies.

The purchaser indemnifies KPTF, its officers, employees, servants, agents, contractors, successors, heirs and assigns against any claim, action, damage, loss, liability, cost, expense, outgoing or payment which KPTF suffers, incurs or is liable for in respect of KPTF’s exercise of its rights under this clause.

In the event that legal proceedings are instituted for the recovery of monies held in trust in accordance with this clause, the purchaser irrevocably acknowledges the existence of monies held on trust as described in this Agreement.

Drawings, Documentation and Information

Any descriptive and shipping specifications, illustrations, drawings, data, dimensions and weights either submitted by KPTF with a quotation or tender or otherwise provided by KPTF to the purchaser are illustrative and approximate only and do not form part of any agreement entered into between KPTF and the purchaser unless expressly agreed in writing by KPTF.

Any drawings or other documents submitted and any information supplied by KPTF to the purchaser remains the property of KPTF and constitutes confidential information of KPTF to the extent that it is not in the public domain. The purchaser shall keep all such confidential information confidential and shall not use such drawings, documents and information for any purpose other than that stipulated by KPTF nor provide the same to third parties.

Where any drawings or other documents submitted by KPTF with or as part of a quotation or tender are not incorporated into an agreement between KPTF and the party to which such quotation or tender was submitted, they shall be returned to KPTF within seven days of expiry of the quotation or tender or otherwise as reasonably required by KPTF.

Where drawings and/or other materials form part of an agreement they shall be subject to recognised tolerances.

Subject and Limit of the Offer

Following its submission of a quotation or tender or its acceptance of an order, KPTF shall not be required to comply with any additional standards, specifications, rules or other requirements, whether proposed by the purchaser or otherwise. If any such additional standards, specifications, rules or other requirements are proposed to apply, KPTF reserves the right to decline to proceed with the quotation or tender, decline to fill the order, vary the quotation or tender or order, or adjust the price of the goods and/or services in its sole discretion.

KPTF shall use all reasonable endeavours to comply with all relevant legislation, court orders, requirements or bylaws having application to the manufacture, delivery and/or supply of goods or services by it.

Unless expressly stated in a quotation or tender, the price of goods does not include installation, erection or commissioning.

Unless expressly stated in a quotation or tender, the price of goods and/or services does not include training of the purchaser’s employees, servants or agents by KPTF.

Unless otherwise notified in writing by KPTF to the purchaser, goods are of standard design and KPTF shall not be obliged to comply with tender specifications of minor importance to the operation of the goods.

Termination

KPTF may terminate any agreement without notice if the purchaser is in breach of any term of the agreement and fails to remedy the breach within 14 days of notice in writing by KPTF specifying the breach and requiring the purchaser to remedy it.

KPTF may also terminate any agreement if the purchaser fails to make payment to KPTF in accordance with this Agreement, if a payment or amount payable by the purchaser to KPTF is overdue in whole or part, if the purchaser has failed or refused to take delivery of goods and such failure or refusal continues for 14 days after KPTF has notified the purchaser that the goods are ready for delivery or dispatch, or if the purchaser has failed or refused to allow KPTF to supply services and such failure or refusal continues for 14 days after KPTF has notified the purchaser that it is ready, willing and able to supply such services.

KPTF may terminate any agreement if the purchaser is declared bankrupt, resolves to go into liquidation, has a petition for bankruptcy or winding up presented against it, enters into a scheme of arrangement with its creditors, or if any liquidator, provisional liquidator, administrator, receiver, receiver and manager or official manager is appointed in respect of the purchaser, or if anything analogous occurs in respect of the purchaser.

In the event of termination, all amounts payable to KPTF in respect of any goods and/or services supplied by it to the purchaser shall be immediately due and payable, notwithstanding any previous period of credit granted by KPTF.

KPTF shall, after taking into account payments made by the purchaser to KPTF, be entitled to be paid by the purchaser for work done and expenditure made under the agreement up to and including the date of termination.

The purchaser shall be liable for and shall pay to KPTF on demand any direct and indirect loss suffered by KPTF, including without limitation KPTF’s loss of profit on the agreement and all costs and expenses incurred or charged to KPTF, including legal costs on a full indemnity basis, in relation to the termination and any prior breach.

The purchaser expressly and irrevocably authorises KPTF to enter the premises of the purchaser and remove any goods that are owned by KPTF equal to, but not in excess of, all monies owing at any given time to KPTF by the purchaser.

KPTF may terminate this Agreement, terminate any credit terms and/or refuse to supply any goods to the purchaser.

Termination of the agreement pursuant to this clause shall be without prejudice to the rights of KPTF accruing up to the date of termination.

Intellectual Property

KPTF does not guarantee that the supply by it and the use by the purchaser of the goods does not and will not infringe any patent, registered design, trademark or intellectual property rights of any third party, whether such rights take the form of letters patent, registered designs, copyright, trademark rights, or any other similar right.

KPTF’s Obligations

Notwithstanding any other provision of these terms and conditions of sale, if the purchaser breaches a term of an agreement, KPTF shall not be bound to perform its obligations under that agreement until the breach is remedied by the purchaser.

Severance

If any provision or part of any provision of these terms and conditions of sale is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision of these terms and conditions of sale.

Waiver

Any waiver or purported or implied waiver by KPTF of strict compliance with these terms and conditions of sale shall not be deemed a waiver unless it is in writing and signed by an authorised officer of KPTF. Such waiver shall not prejudice the rights of KPTF in respect of any breach of these terms and conditions of sale to which such waiver does not specifically relate.

Proper Law

All agreements shall be governed by the laws of Victoria and the parties agree to submit to the non-exclusive jurisdiction of the courts of that State and the courts of the Commonwealth of Australia having jurisdiction therein.

Vienna Convention

The United Nations Convention on Agreements for the International Sale of Goods (“the Vienna Convention”) shall not apply to any agreement entered into between KPTF and the purchaser.

Dispute Resolution

Any dispute between the purchaser and KPTF arising out of or in any way connected with an agreement which is not resolved by the purchaser and KPTF within 14 days of a notice by either party to the other advising that it is a notice pursuant to this clause shall be referred for determination to a person agreed between KPTF and the purchaser or, failing such agreement, to the nominee of KPTF, who shall act as an independent expert and not as an arbitrator. The expert’s written determination is final and binding on the parties.

Survivorship

Clauses 6, 8, 9, 10, 14, 18, 20, 24, 25 and 26 shall not merge but survive completion of the agreement.

Force Majeure

Should KPTF be delayed, hindered or otherwise prevented from complying with the terms of this Agreement by reason of events or circumstances beyond the reasonable control of KPTF, including but not limited to Acts of God, wars, riots, acts of terrorism, strikes, lockouts, trade disputes or labour disturbances, breakdown of plant or machinery, accident, storm, fire, flood, difficulties in obtaining materials, transport or labour or any other circumstances affecting the supply of goods or services, then KPTF shall not be liable to the purchaser for any loss or damage which may be suffered by the purchaser whether as a direct or indirect result of any such occurrences.

Privacy Act Consent – Credit Reports

The purchaser, each of its individual directors, partners or proprietors, and each person signing as guarantor of the purchaser’s obligations under the credit application acknowledges and agrees that KPTF and any related bodies corporate may give certain information about them to related bodies corporate of KPTF, a credit reporting agency, other credit providers, collecting agencies or legal firms, including some located in foreign countries, in order to obtain a credit report about them or to recover money which is due and payable from them.

The information which may be given is covered by section 20 of the Privacy Act 1988 (Cth) and may include, as relevant, identity particulars and the fact that the purchaser has applied for credit or the guarantor has offered to act as a guarantor.

KPTF may, in assessing whether to grant the purchaser’s credit application or whether to accept the guarantor as a guarantor, seek and obtain information about them from a credit reporting agency or another credit provider and may give information about them to another credit provider. The information may include anything about credit worthiness, history, standing or capacity, including information about commercial credit, which credit providers are permitted by the Privacy Act to obtain or receive.

Personal Property Securities Act

The purchaser agrees and undertakes to do anything KPTF requires, such as obtaining consents and signing and producing documents, in connection with the registration of this document or any other document on any register established pursuant to the Personal Property Securities Act 2009 (Cth), as amended from time to time. In the event the purchaser neglects or fails to deliver such documents, the purchaser appoints KPTF to be the purchaser’s lawful attorney for the purpose of executing and registering such documents.

The purchaser agrees and acknowledges that these terms and conditions constitute a security agreement for the purposes of section 20 of the PPSA and that a security interest exists in all goods and their proceeds previously supplied by KPTF to the purchaser pursuant to this Agreement and in all future goods and their proceeds, including commingled goods.

Where the purchaser is paid in respect of the goods delivered, the purchaser must, as KPTF’s fiduciary, keep any such proceeds in a separate account and account to KPTF in respect of those proceeds.

The purchaser contracts out of and waives its rights under the relevant provisions of Chapter 4 of the PPSA, including rights to receive notices of intention of removal of accession, enforcement action, seizure, disposal, retention, statements of account, verification statements, rights to object, redeem the goods or reinstate the security agreement.

Where KPTF has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.

Until ownership of the goods passes, the purchaser must not give KPTF a written demand or allow any other person to give KPTF a written demand requiring KPTF to register a financing change statement under the PPSA or enter into, or allow any other person to enter into, the register of personal property securities a financing change statement under the Act.

The purchaser acknowledges that it has received value as at the date of first delivery of the goods and has not agreed to postpone the time for attachment of the security interest granted to KPTF under these terms and conditions.

The purchaser irrevocably grants to KPTF the right to enter upon the purchaser’s property or premises, without notice and without being liable to the purchaser or to any third party, if KPTF has cause to exercise any of KPTF’s rights under section 123 and/or 128 of the Act. The purchaser agrees to indemnify KPTF, its officers, employees, servants, agents, contractors, successors, heirs and assigns from any claims made by any third party as a result of KPTF exercising such right.

Confidentiality

Except as required by law and subject to the PPSA, KPTF and the purchaser agree to treat these terms and conditions as confidential.

KPTF and the purchaser acknowledge and agree that the relevant sub-clauses of this Agreement constitute a confidentiality agreement pursuant to section 275(6) of the PPSA.

Neither KPTF nor the purchaser will disclose, send or make available any of the information referred to in section 275(1) of the PPSA to any person except as required by law, these terms and conditions and subject to the PPSA.

Refund Policy

KPTF will refund a purchaser when the claim for refund is made within 14 days of the invoice date.

Where the refund relates to a return of goods, the goods must not have been purchased by KPTF specifically to fill a purchaser’s order. The goods must be returned in the original packaging, if applicable. The goods must not be damaged, used or exhibited in the opinion of a KPTF Manager.

Any evidence of use must be considered and the goods must be accompanied by the original KPTF invoice under which they were purchased by the purchaser.

Where the refund relates to a claim for incorrect invoicing, the claim must be accompanied by the original invoice which evidences the incorrect pricing.

In all cases, the final judgement as to whether a claim for a refund should be allowed rests with the sole discretion of the KPTF Manager or Director.

Additional Conditions Applicable to Contracts Relating to or Including Installation, Planting, Erection or Commissioning of Goods

The following additional conditions apply to contracts relating to or including installation, planting, erection or commissioning of goods.

Access to Site

The purchaser shall permit KPTF such access to the site as KPTF requires to perform its work under the agreement and shall take all reasonable measures to avoid interference with the work of KPTF, including without limitation coordinating KPTF’s work with that of others on the site.

The purchaser shall provide without cost to KPTF every facility for the performance of KPTF’s work under the agreement, including without limitation providing proper foundations to receive the goods the subject of the agreement, adequate cranage, lifting tackle and scaffolding, suitable protection for the goods from the time of delivery until the time of taking over, and the proper fencing, lighting and guarding of the goods until the time of taking over.

Time of Taking Over

Notwithstanding any other provision of these terms and conditions of sale or otherwise, the goods shall be deemed to have been delivered and taken over by the purchaser at the conclusion of delivery, which includes but is not limited to collection by or on behalf of a purchaser.

The party named below acknowledges that the document contained herein forms the Agreement for the Sale of Goods and/or Services.

The purchaser acknowledges and warrants that he, she or it has full power to enter into this Agreement and do the things required by it.

The purchaser acknowledges and warrants that the person signing this Agreement on behalf of the purchaser has full power and authority to sign this Agreement on behalf of the purchaser and is duly authorised to do so.

The party named below further acknowledges that they have read and understood the contents of the document contained herein, being the Terms and Conditions for the Sale of Goods and/or Services.