Terms and Conditions

This Agreement is made between Austfluid Link Asia Pacific Pty Ltd ACN 119 516 568 ABN 99 119 516 568 (“Austfluid”) and the persons described herein as the Client and the Guarantor on the following terms and conditions.

1. Acceptance
1.1. Each of the following shall constitute acceptance of these terms and
conditions:
(a) the giving of any order, request or instruction by the Client to Austfluid;
(b) the Client’s acknowledgement or acceptance of, or acquiescence in, any
confirmation by Austfluid of any order, request or instructions;
(c) the Client’s acceptance of any goods supplied by Austfluid;
(d) the payment of any amount by the Client for goods supplied by Austfluid;
and
(e) any other conduct which indicates or constitutes acceptance of these terms
and conditions by the Client.
1.2. Upon acceptance the terms and conditions are binding on the Client and can
only be amended with the written agreement of Austfluid.
1.3. Where more than one Client or Guarantor enters into these terms and
conditions, they are jointly and severally liable for all their obligations.
2. Credit Account
2.1. Austfluid may at its discretion open a Credit Account for the Client.
2.2. Only authorised representatives of the Client are authorised to transact on the
Credit Account. The Client shall keep Austfluid notified of those persons at all
times.
2.3. Austfluid may require the Client to spend a minimum dollar amount per year to
obtain the goods or services on credit (charged to the Credit Account).
2.4. Austfluid may from time to time at its absolute discretion specify the maximum
(GST – inclusive) amount that may be charged to the Credit Account over a
particular period (“Credit Limit”). The Client’s Credit Limit is subject to review at
any time by Austfluid. Also, Austfluid may, on request in writing by the Client,
agree in writing to increase or decrease the Credit Limit (including to zero).
2.5. The balance of the Credit Account at any time must not exceed the Credit
Limit.
2.15. If part of any amount set out in a tax invoice is in dispute, the Client agrees to
pay the undisputed amount within the time period specified in clause 2.9.
3. Prices
3.1. At Austfluid’s sole discretion the Price of goods shall be either:
(a) as indicated on invoices provided by Austfluid to the Client in respect of
goods supplied; or
(b) Austfluid’s quoted Price (subject to clause 3.2) which shall be binding
upon Austfluid unless Austfluid withdraws the quote before it is accepted
by the Client and provided always that the Client shall accept Austfluid’s
quotation in writing within thirty (30) days after which the quote shall lapse.
3.2. Austfluid reserves the right to change the Price in the event of a variation to
Austfluid’s quotation.
3.3. Austfluid may at its discretion in relation to any order require payment of not
less than thirty percent (30%) of the Price upfront before filling any order for
goods by the Client.
3.4. Payment for goods in full shall be due prior to delivery of the goods unless
Austfluid has opened a Credit Account for the Client, in which case payment of
the balance outstanding shall be charged to the Credit Account and paid
pursuant to clause 2.
3.5. GST and other taxes and duties that may be applicable shall be added to the
Price except when they are expressly included in the Price.
3.6. The Client shall not be entitled to set off against or deduct from the Price any
sums owed or claimed to be owed to the Client by Austfluid.
4. Delivery
4.1. Delivery of the goods shall take place when the goods are dispatched from
Austfluid’s premises or loaded onto or given to a carrier for dispatch to the
Client, whichever occurs earlier in time.
4.2. At Austfluid’s sole discretion the costs of delivery are:
(a) included in the Price; or
(b) in addition to the Price.
4.3. The Client shall make all arrangements necessary to take delivery of the goods
whenever they are tendered for delivery. In the event that the Client is unable
to take delivery of the goods as arranged then Austfluid shall be entitled to
charge a reasonable fee for redelivery.
4.4. Delivery of the goods to a third party nominated by the Client is deemed to be
delivery to the Client for the purposes of this agreement.
4.5. Austfluid may deliver the goods by separate instalments. Each separate
instalment shall be invoiced and paid in accordance with the provisions in
these terms and conditions.
4.6. The failure of Austfluid to deliver shall not entitle either party to treat this
contract as repudiated.
4.7. Austfluid shall not be liable for any loss or damage whatever due to failure by
Austfluid to deliver the goods (or any of them) promptly or at all.
5. Risk
5.1. Whether or not Austfluid retains ownership of the goods, all risk for the goods
passes to the Client on delivery.
5.2. If any of the goods are damaged or destroyed following delivery but prior to
ownership passing to the Client, Austfluid is entitled to receive all insurance
proceeds payable for the goods. The production of these terms and conditions
by Austfluid is sufficient evidence of Austfluid’s rights to receive the insurance
proceeds without the need for any person dealing with Austfluid to make
further enquiries.
5.3. The Client disclaims any right to rescind, or cancel this agreement or any order
with Austfluid or to sue for damages or to claim restitution arising out of any
representation made to the Client by Austfluid and the Client acknowledges
and accepts that the goods are bought relying solely upon the Client’s skill and
judgment.
6. Title
6.1. Austfluid and the Client agree that ownership of the goods shall not pass until
the Client pays all amounts owing for the particular goods and takes delivery of
the goods from Austfluid.
6.2. Until ownership passes:
(a) the goods shall be kept separate and identifiable from other goods;
(b) the Client shall not remove or alter any packaging or indicia on the goods;
(c) the Client shall return the goods to Austfluid upon demand or allow
Austfluid to enter and collect or seize them from the Client’s premises;
(d) Austfluid may stop goods in transit whether or not delivery has occurred;
(e) the Client is only a bailee of the goods and must not sell or deal in them;
(f) Austfluid can sue for the Price even if ownership has not passed;
(g) if the goods are converted into other goods, Austfluid’s rights hereunder
apply to the end goods.
7. Defects and Warranty
7.1. The Client shall inspect the goods on delivery and shall within seven (7) days
of completion of the delivery (time being of the essence) notify Austfluid of any
alleged defect, shortage in quantity, damage or failure to comply with the
description or quote.
7.2. The Client shall allow Austfluid to inspect the goods within a reasonable time
following delivery if the Client believes the goods are defective in any way.
7.3. If goods are defective, Austfluid’s liability is limited to either (at Austfluid’s
discretion) replacing the goods or repairing the goods, except where the Client
has acquired goods as a consumer in which case Austfluid shall refund the
Price if the Client requests.

8. Default & Indemnity
8.1. If at any time the Client is in breach of its obligations under these terms and
conditions, Austfluid may suspend or terminate the Credit Account and/or the
supply of goods to the Client. Austfluid will not be liable to the Client for any
loss or damage the Client suffers because Austfluid has exercised its rights
under this clause.
8.2. The Client shall indemnify Austfluid from and against all loss, damage, costs
and disbursements incurred by Austfluid in respect of any default under these
terms and conditions by the Client, including legal costs and collection agency
costs.
8.3. Without prejudice to any other remedies Austfluid may have at law, if at any
time the Client or the Guarantor is in default of any obligation contained under
these terms and conditions, Austfluid shall have the right to enforce all of its
rights under the PPSA.
9. Representations
9.1. The Client and the Guarantor represent and warrant that:
(a) they are not bankrupt, insolvent or under external administration;
(b) they are adequately insured with a reputable insurer;
(c) there are no legal proceedings against them or their directors;
(d) all corporate authorisations and approvals necessary have been obtained;
(e) all governmental licenses and approvals necessary have been obtained;
(f) neither of them has withheld any information material to Austfluid’s
decision to enter these terms and conditions; and
(g) their signatory/ies hereunder are duly authorised to sign on their behalf.
9.2. The Client and the Guarantor must immediately notify Austfluid if any of these
representations and warranties cease to be true and correct at any time.
10. Security Bond
10.1. Austfluid may require the Client to pay a deposit bond or bank guarantee to
Austfluid as security for payment of any order for or sale or supply of goods
hereunder.
10.2. Austfluid may draw upon the deposit bond or bank guarantee at Austfluid’s
discretion for the purpose of making up and discharging any unpaid or
outstanding amounts owing by the Client under these terms and conditions.
10.3. Austfluid may require the Client to top up or replace any deposit bond or bank
guarantee hereunder in the event of any drawing under clause 10.2. If the
Client fails to do so within 7 days of such demand, the said failure shall
constitute a material default under these terms and conditions entitling
Austfluid to terminate and pursue the Client for its loss and damage.
11. Guarantee and indemnity:
11.1. The Guarantor unconditionally guarantees to Austfluid the due and punctual
performance by the Client of the terms covenants and obligations on the part
of the Client under these terms and conditions.
11.2. The Guarantor shall indemnify Austfluid, and keep Austfluid indemnified, from
and against any and all claims, demands, actions, proceedings, losses,
damages and costs that Austfluid incurs or may incur as a result of any breach
by the Client of these terms and conditions.
11.3. The Guarantor’s liability under the aforesaid guarantee and indemnity is
unlimited and the Guarantor’s obligations continue notwithstanding:
(a) any agreement or arrangement between Austfluid and the Client;
(b) any alteration or replacement of these terms and conditions;
(c) the granting of any indulgence or forbearance to the Client by Austfluid;
(d) the appointment of an official manager, administrator, receiver, receiver
and manager, liquidator or provisional liquidator of the Client; or
(e) any order or statutory provision having the effect of restricting or deferring
claims against the Client by its creditors.
11.4. The Guarantor is liable to Austfluid hereunder notwithstanding that Austfluid
may at any time obtain a judgment against the Client in connection herewith.
12. Personal Property Securities Act (PPSA)
12.1. The Client and/or the Guarantor grant a purchase money security interest
and/or a charge over any goods it has acquired from Austfluid to secure
payment of the goods and Credit Account in accordance with these terms and
conditions and the provisions of the PPSA, and Austfluid agrees to take a
purchase money security interest and a charge over the goods, which security
interest shall be registered on the PPSR. The Client and the Guarantor shall
do all such things necessary to perfect Austfluid’s security interest hereunder.
12.2. The security interests of Austfluid hereunder have priority over all other
creditors of the Client and the Guarantor in relation to the goods.
12.3. The Client and the Guarantor authorise under section 275(7)(c) of the PPSA,
the disclosure of information by a secured party under section 275(4) of the
PPSA in response to any request for information from an interested person
pursuant to sections 275(1) to (3) of the PPSA.
12.4. The Client and the Guarantor will not without written notice to Austfluid, change
their name or initiate any change to any documentation registered under the
PPSA in relation to these terms and conditions.
12.5. Austfluid undertakes to maintain the accuracy of the registered security interest
and may remove the registration when the Client and Guarantor have paid all
amounts owed to Austfluid in relation to the goods and any Credit Account.
13. Credit checking and privacy
13.1. Austfluid may obtain from a credit reporting agency a credit report about the
Client and Guarantor.
13.2. Austfluid may exchange information about the Client and the Guarantor with
credit reporting agencies, credit providers and trade referees to assess the
Client’s credit worthiness and to notify third parties of any defaults hereunder.
13.3. The Client consents to Austfluid being given a consumer credit report to collect
overdue payment on commercial credit under S.18K(1)(h) of the Privacy Act.
13.4. The Client agrees that personal credit information provided may be used and
retained by Austfluid to provide goods, market Austfluid’s products and
services, process payments hereunder and operate the Credit Account.
14. General
14.1. Austfluid shall be under no liability whatever to the Client for any indirect,
special or consequential loss, damage or expense (including loss of profit)
suffered by the Client arising out of a breach by Austfluid of these terms and
conditions. Further, on the event of any breach of this contract by Austfluid the
remedies of the Client shall be limited to damages which under no
circumstances shall exceed the Price of the goods.
14.2. Austfluid may assign, license or sub-contract all or any part of its rights and
obligations hereunder (including Austfluid’s interest in any order, invoice or
Credit Account of the Client), without the Client’s consent.
14.3. The Client and the Guarantor shall not assign, license or sub-contract any part
of its rights and obligations hereunder without Austfluid’s prior written fully
informed consent.
14.4. Austfluid reserves the right to review these terms and conditions at any time. If,
following any such review, there is to be any change to these terms and
conditions, then that change will take effect from the date on which Austfluid
notifies the Client of such change.
14.5. Neither party shall be liable for any default due to any act of God, war,
terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other
event beyond the reasonable control of either party.
14.6. These terms and conditions and any contract to which they apply shall be
governed by the laws of Queensland and are subject to the jurisdiction of the
courts of Queensland.