1. Unless Silica Gel Solutions otherwise agrees in writing and to the extent permitted by law, these terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the purchase of goods, and contain the only terms and conditions of purchase (Terms and Conditions) to which Silica Gel Solutions will be bound, and the Customer agrees that these Terms and Conditions will in all circumstances prevail over the Customer's terms of purchase (if any) and any other documentation issued by the Customer.
PRICES & PAYMENT
2. Unless otherwise expressly agreed by Silica Gel Solutions in writing all Goods will be charged at Silica Gel Solutions’ prices current as at the dates of order. Prices are subject to change without notice.
3. Unless otherwise agreed in writing, payment for all Goods shall be made within 14 days starting from the day in which the goods are delivered.
4. Non-payment of any or all Goods by the due date will be considered by Silica Gel Solutions to be a breach of these Terms and Conditions and, in addition to any other rights, Silica Gel Solutions may undertake to:
a. Cancel the Customer's right to hold debt with Silica Gel Solutions, and
b. Charge interest on any outstanding amount, calculated from the day following the date upon which payment should have been made, at a rate equal to Silica Gel Solutions’ then current overdraft rate, as varied from time to time.
c. Sell the Customer personal property to pay off the remaining amount owed.
5. Monies owed by the Customer to Silica Gel Solutions shall become due immediately upon the commencement of any act or proceeding in which the Customer's solvency is involved.
6. Silica Gel Solutions reserves the right to charge various fees and levies from time to time.
7. The Customer is liable for and must indemnify Silica Gel Solutions against any and all losses, damages, liabilities costs, charges and expenses suffered or incurred by Silica Gel Solutions arising directly or indirectly from or in connection with the Customer's default, failure to pay, or breach of any of these Terms and Conditions and the Customer must pay all such amounts on demand.
ORDERS & DELIVERY
8. Silica Gel Solutions may refuse to accept a purchase order, or part of a purchase order, placed by the Customer.
9. Delivery of the Goods shall be considered effected upon unloading at the Customer's premises or upon collection by the Customer or the Customer's agent or courier (as the case may be).
WARRANTY & LIABILITY
10. Silica Gel Solutions excludes all implied terms, conditions, warranties and guarantees (whether statutory or otherwise) and all liability however arising for any loss or damage whether direct, indirect, special or consequential (including loss of profits or loss of goodwill) arising in any way out of or in connection with the Goods and/or these Terms and Conditions, except to the extent that the Customer suffers direct loss or damage (excluding any indirect, special or consequential loss, loss of profits and loss of good will) as a result of any negligent or wilful act or omission of Silica Gel Solutions.
11. Without prejudice or admission as to the operation of the Australian Consumer Law or any other legislation, if any term, condition, warranty or guarantee is implied into these Terms and Conditions or applies to the Goods which by law cannot be excluded, but may be limited, Silica Gel Solutions’ liability for any breach of any such term, condition, warranty or guarantee (including to any person claiming through the Customer) is limited, at Silica Gel Solutions’ option, to:
a. The replacement of the goods or the supply of equivalent goods; or
b. The payment of the cost of replacing the goods or acquiring equivalent goods.
PROPERTY & RISK - Retention of Title
12. Property in and ownership of the Goods does not pass to the Customer until Silica Gel Solutions has received payment in full of all monies owing to Silica Gel Solutions by the Customer on all accounts.
13. The risk of loss or damage to the Goods shall pass to the Customer upon delivery to the Customer or upon collection of the Goods by the Customer or the Customer's agent or courier (as the case may be).
14. If the Customer fails to pay for any Goods within the designated period, Silica Gel Solutions may recover possession of all Goods (in which property has remained with PFD foods – our supplier) at any site owned, possessed or controlled by the Customer and the Customer agrees that Silica Gel Solutions has an irrevocable license to do so without incurring any liability to the Customer or any person claiming through the Customer.
15. To the extent limited in accordance applicable law, Silica Gel Solutions shall indemnify, defend, and hold harmless the Customer from and against any and all liabilities, claims, losses, lawsuits, judgments, and/or expenses, including attorney fees, arising either directly or indirectly from any act or failure to act by the Customer or any of its officers or employees, which may occur during or which may arise out of the performance of this Agreement. Silica Gel Solutions will assert the defence of sovereign immunity as appropriate in all cases, including malpractice and indemnity actions. Silica Gel Solutions’ indemnity obligation for actions sounding tort is limited in accordance with applicable law per cause of action.
16. The Customer hereby guarantee the due and punctual payment of all monies which may now or in the future be or become due and payable to the Silica Gel Solutions by the Customer under the Company’s Terms and Conditions of Trading or whether arising in any other way on any account whatsoever operated by the Customer with the Company. The terms shall remain in force if the Customer desires to transact business with and hold debt with Silica Gel Solutions.
17. The Customer also further declares that:
a. This Guarantee shall be a continuing guarantee and shall remain in full force and effect and the Customer shall remain liable hereunder notwithstanding the granting by Silica Gel Solutions of time, credit or any other indulgence or concession to the Customer or the waiver by Silica Gel Solutions of any breach by the Customer of its obligations to the Silica Gel Solutions or the liquidation of the Customer or the bankruptcy or death of the Customer or the liability of the Customer ceasing or becoming extinguished for any reason.
b. I/WE will make due and punctual payments to Silica Gel Solutions on demand being made by notice or letter given to the Customer and such demand or notice or letter shall be deemed to be duly made or given if the same shall be in writing and left at or sent by pre-paid post to the address of the Customer as set out above.
c. The Customer shall pay all costs, fees, charges and expenses including legal costs on a solicitor and own customer basis incurred by the Silica Gel Solutions of and incidental to this Guarantee or any matter arising out of or incidental to this Guarantee or the performance or failure to perform by the Customer of the covenants herein contained. If necessary, the Customer shall sell personal property to pay off the amount owned.
d. If any of the obligations hereby guaranteed shall not be enforceable against the Customer purported to be primary liable this Guarantee shall be construed as an indemnity and the Customer hereby indemnifies the Silica Gel Solutions in respect of any failure by the Customer to make payment or perform or observe any covenant, obligation, term or condition of this Guarantee and form and against all losses, damages, costs, charges and expenses of any kind which the Silica Gel Solutions may incur because of or arising out of the default by the Customer under the Company’s Terms and Conditions of Trading or howsoever arising.
e. No delay on the part of Silica Gel Solutions in exercising any rights hereunder or failure to exercise the same shall operate as a waiver of such rights; no notice to or demand on the Customer shall be deemed to be a waiver of the obligations of the Customer or of the right of Silica Gel Solutions to take further action without notice or demand as provided herein; not in any event shall any modifications or waiver of the provisions of this guaranty be effective unless in writing nor shall any such waiver be applicable except in the specific instance for which given. Any variation to the terms will not invalidate this guarantee.
18. The Customer agrees that:
a. Silica Gel Solutions may seek from a credit reporting agency a credit report containing personal information about the Customer to assess whether to accept the Customer as an Customer for credit applied for or provided to the Customer; and
b. If Silica Gel Solutions approves the Customer’s application for credit this agreement shall remain in force until the credit facility covered by the Customer’s application ceases.
19. These Terms and Conditions shall terminate immediately upon written notice from Silica Gel Solutions to the Customer.
20. The termination of these Terms and Conditions shall be without prejudice to the rights of either party against the other in respect of anything done or omitted under these Terms and Conditions prior to such termination or in respect of any sum and/or other claims outstanding at the time of termination.
21. Failure by Silica Gel Solutions to enforce any of these Terms and Conditions shall not be construed as a waiver of any of Silica Gel Solutions’ rights hereunder or a waiver of a continuing breach.
22. A waiver of any right from this contract must be in writing and signed by Silica Gel Solutions.
23. Acceptance by the Customer of these Terms and Conditions as amended from time to time may be by any one of the following ways:
a. By signing and returning a copy of these Terms and Conditions.
b. By ticking the I Accept the Terms and Conditions box on any electronic platform owned by or associated with Silica Gel Solutions.
c. By performing an act that is done with the intention of adopting or accepting these Terms and Conditions after receiving them, including but not limited to continuing to make purchases.
24. The proper law of all agreements arising between Silica Gel Solutions and the Customer is the law of the State of New South Wales and the parties agree that all claims and disputes relating to the Goods shall be determined in the Court of competent jurisdiction nearest Sydney.