Terms of Sale

1. FORMATION OF CONTRACTS

•  In the following conditions of sale 'the Company' shall mean EcoSmart Chemicals. ABN 68 108 318 109 and 'the Purchaser' shall mean the entity or person(s) purchasing the goods and/or services which are the subject of these conditions of sale.

•  All contracts made by the Company shall be deemed to incorporate these terms and conditions together with any special conditions stated on or annexed to the quotation form or any other document submitted by the Company.

•  No variation of our obligation to these terms and conditions shall bind the Company unless made or specifically accepted by the Company in writing and in the event of inconsistency between any of the additional conditions aforesaid and these conditions, the additional conditions of sale shall be deemed to prevail.

•  QUOTATIONS AND ORDERS

•  All quotations constitute an offer by the Company which, unless otherwise stated herein, is capable of acceptance by the Purchaser to whom it is addressed within one (!) month after its date (after which time the offer shall lapse) or at any earlier time by the Company giving written notice to the proposing Purchaser of its revocation or the variation of any term including any price quoted herein.

•  No order will be accepted by the Company unless an official written order is received by the Company from the Purchaser. An order placed by the Purchaser shall be deemed accepted by the Company unless the Company notifies the Purchaser to the contrary within three (3) business days of the receipt of the order by the Company.

•  PRODUCT AND SUITABILITY FOR USE

•  The Purchaser acknowledges that it accepts all responsibility for the suitability for use of the products supplied. The Company shall not have any responsibility whatsoever for any loss or damage, consequential or otherwise arising as a result or consequence of such lack of suitability if the product is used in a manner contrary to instructions or for the purpose other than expressly stated. The Purchaser acknowledges its obligation to carry out appropriate compatibility testing at the Purchaser's sole cost and expense in respect of each individual shipment or batch of containers, closures, labels and artwork delivered by the Company.

•  PRICE AND PRICE VARIATION

•  All prices and terms quoted by the Company or shown in any of its catalogues or price lists relating to any goods or services to be provided are based on the cost prevailing at the date of the quotation, offer, catalogue or price list.

•  Prices quoted do not include sales tax or any other goods and services tax or any other value added tax and these and any other imposts of any government or other authority shall be payable by the Purchaser and will be added to the quoted price and treated as part of the Purchase price. Any such tax or impost will be calculated relevant to the actual delivery date of the goods irrespective of any delivery dates specified in the order.

•  Where an order is placed for forward delivery or the Company is unable to effect immediate delivery in respect of any order, the order is accepted subject to price adjustment such that the order will be charged and paid for at the relevant price for the goods ordered as set out in the Company's price list current at the time which delivery is made.

•  The Company may charge different prices for goods depending on whether the product is collected from the Company, delivered within a certain geographical area or delivered outside a certain geographical area.

•  TERMS OF PAYMENT

•  Unless otherwise agreed to or specified in writing by the Company, payment for the goods shall be made by the Purchaser to the Company within thirty (30) days from the end of month during which delivery occurs or notice given or provided in Clause 6.4

•  Should the Purchaser delay or default in respect of any payment due hereunder the Company shall have the right to charge interest at a rate equivalent to fifteen (15) per centum per annum calculated from the due date to the full and final payment. Any payment made by the Purchaser will be credited first against the interest accrued.

•  The obligation for payment contained in Clause 5.1 shall be binding upon the Purchaser and enforceable by the Company notwithstanding that title has not passed as provided in Clause 8.1 hereof.

•  DELIVERY, COMPLETION AND RISK

•  Any times quoted for delivery of goods is estimates only and the Company shall not be subject to any liability whatsoever for failure to deliver or for delay in delivery arising from any causes whatsoever.

•  The Purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery or dispatch.

•  The Company reserves the right to deliver in installments and each in installment shall be deemed to be sold under a separate contract. Failure to deliver any installment shall not entitle the Purchaser to repudiate, rescind or terminate the contract.

•  The Company shall give notice to the Purchaser when the goods or part thereof are ready for delivery and of for any reason whatsoever the Purchaser fails to take possession of the goods within seven (7) days from the date of notification, or fails to give delivery instructions to the Company prior to that expiry of such seven (7 ) day period, then risk in the goods shall pass forthwith in to the Purchaser.

•  Subject to the above paragraph, the goods or part thereof supplied by the Company shall be at the Purchaser's risk immediately upon delivery to the Purchaser or into the custody of anyone acting on the Purchaser's behalf, which ever is the sooner.

•  ACCEPTANCE/RETURN

•  The Purchaser shall inspect the goods forthwith upon delivery and shall within three (3) days from the date of delivery give written notice to the Company of any matter or thing by reason whereof the Purchaser may allege that the goods are not in accordance with the contract. All goods are supplied subject to the usual trade tolerances relating to weight, dimension and processing. If the Purchaser fails to give such notice within the aforesaid time, the goods shall be deemed to have been accepted by the Purchaser.

•  Should the Purchaser deem any goods to be faulty, the goods must be isolated and the Company advised so that the appropriate assessment of the goods may be undertaken by or on behalf of the Company for the Company's supplier. No goods shall be returnable for credit until such time as a return authorization is issued by the Company to the Purchaser.

•  TITLE

•  Notwithstanding that risk in the goods shall pass to the Purchaser as provided herein, title to the goods shall remain with the Company until all moneys owing by the Purchaser to the Company have been paid in full (whether such moneys are in respect to the moneys payable under a specific contract or on any other account whatsoever) and until such time the Purchaser shall, unless otherwise agreed in writing by the Company, store the goods so as to indicate they are the Company's goods and the Purchaser shall hold the goods as bailee thereof only subject nevertheless to its right to deal with the goods in the ordinary course of business on the basis that any monies received as a result of such dealing shall be held by the Purchaser as trustee for the Company and for the benefit of the Company has hereinafter provided.

•  In the event the Purchaser sells the goods to a third party in the ordinary course of business then the Purchaser shall hold the proceeds of sale on trust for the Company (to such an extent as is sufficient to discharge the Purchaser's obligations to the Company under the contract for sale of goods) and in the event that the Purchaser is not paid by the party to whom the goods were sold then the Purchaser agrees, at the option of the Company (to be exercised by notice in writing to the Purchaser) to assign its claim against that part to the Company ( and for the purpose of giving effect to this provision the Purchaser hereby irrevocably appoints the Company as his attorney for such purpose.

•  If the goods shall be mixed or become constituents of other goods, the proceeds of sale therefore shall be the property of the Company mutatis mutandis and the Purchaser at the request of the Company assign to the Company all its rights as against any sub purchasers of the goods or goods with which the goods have been mixed or of which the goods are constituents.

•  The parties agree that the provisions of this Clause apply notwithstanding any agreement, whether subsequent to this agreement or not, between the parties under which the Company gives Purchaser credit.

•  DESCRIPTION

•  Any description given of any goods will be given by the Company by the way of identification only and the use of such description will not constitute any contract between the Company and the Purchaser as a sale by description.

•  RETURNABLE MATERIALS

10.1 Where packaging (i.e. any item used for wrapping, dividing, supporting, protecting or transporting goods has been charged for and is returnable, a returnable allowance will only be made in respect of such packaging if it has been received by the Company in what the Company or the Company's supplier determines to be an acceptable condition in their respective sole discretion.

10.2 Packaging will remain at all times the property of the Company or the Company's supplier and must not be used by the Purchaser or be allowed to be used by the Purchaser or any other party for any purpose other than its given purpose.

•  LIABILITIES OF THE COMPANY

•  Subject to any provisions herein to the contrary, the only conditions and warranties which are binding on the Company in respect of the state, quality or condition of the goods and services provided by the Company to the Purchaser are those imposed and require to be binding by statute (including the Trade Practices Act, 1974) and to the extent permitted thereby the liability, if any, of the Company arising from breach of such conditions or warranties shall, at the Company option, be limited to and completed discharged, in the case of goods, by either the replacement or repair by the Company of the goods supplied to the Purchaser or the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of repairing the goods and in the case of services, by either the supplying of the services again or the payment of the costs of having the services supplied again, and otherwise all other conditions and warranties whether express or implied by law in respect of the supply of goods or of services and the state, quality or condition of the goods which may apart from this Clause be binding on the Company are hereby expressly excluded and negatived.

•  Except to extent provided herein, the Company shall have no liability (including liability in negligence) to any person for any loss or damage, consequential or otherwise howsoever suffered or incurred by any such person in relation to the goods or the supply of services by the Company, its servants or agents and without limiting the generality therefore in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, breakdown, defect or deficiency of whatsoever nature or kind of any of the goods.

•  Except as provided above, the Company shall not be liable for any breach of these terms and conditions whether the breach is fundamental or otherwise, by the Company, its servants and agents.

•  CONTRACT VARIATIONS

•  No cancellation, suspension or variation (including without limitation, the delivery date)to any contract of which these terms and conditions form part shall be made or purported to be made by the Purchaser unless firstly agreeing to in writing by the Company and then in only such terms as the Company agrees in writing. Any cancellation, suspension or variation made or purported to be made by the Purchaser otherwise that in accordance with the provisions of this Clause 12.1 shall be invalid.

•  Should the Company agree to a cancellation, suspension or variation of contact as mentioned in Clause 14.1 (which is in the complete discretion of the Company) then the terms of such agreement shall, as a minimum requirement, provide that the Purchaser shall be liable for and shall pay to the Company all the Company's costs expenses and losses (including, without limitation, losses of profits) incurred or suffered as a result of or arising from such cancellation, suspension or variation).

•  Where goods or any part of them are manufactured, acquired or imported into Australia specifically for the Purchaser must pay to the Company the full purchase price of the goods.

•  SHORTAGES, DAMAGE AND/OR LOSS IN TRANSIT

•  No claim for non delivery or part of a consignment or for damage in transit, corrosion, shortage or delivery deviation, delay or detention will be entertained unless a separate notice in writing is given to the carrier concerned within such time as enables a claim to be made upon the carrier and to the Company within three (3) days of receipt of goods and a complete claim in writing is made to the Company within five (5) days of receipt.

•  In the case of non delivery of a whole consignment, notice in writing must be given to the carrier concerned within such time as enables a claim to be made upon the carrier and to the Company within five (5) days of receipt of invoice and a complete claim in writing is made within ten (10) days of such receipt.

•  Where goods are accepted without being checked, the delivery book of the carrier concerned must be signed “non examinedâ€.

•  Any goods in respect of which any such claim is made shall be preserved intact as delivered for a period of fourteen (14) days from notification of the claim within in which time the Company and the carrier shall have the right to attend at the Purchaser's work to investigate the complaint.

•  Any breach of any of the sub Clauses shall disentitle the Purchaser to any claim whatsoever.

•  FORCE MAJEURE

•  The Company shall be entitled to cancel or rescind any contract for the supply of goods or services to the Purchaser without any liability for any loss or damage resulting wherefrom if the performance of its obligations under any such contract is in any way affected by war, rior, restraint of government, strike, lockout, dispute with work people, shortened hours of labour, fire, accident, non available of materials, goods or components stoppage or interference with transport, compliance with government regulations or any cause for which the Company has no power to avert (a Force Majeure event) and, in such event, until such time as the Company elects so to cancel or rescind any such contract, the obligation of the Company of the Company shall be suspended without any liability for any loss or damage for such suspension until the force majeure event no longer effects the performance of such obligations of the Company.

•  LEGAL CONSTRUCTION

•  All contracts entered into under the conditions herein shall take effect and be construed in all respects in accordance with the laws from time to time in force in the state of Queensland.

•  SEVERABILITY AND WAIVER

•  If any portion of these terms and conditions of sale shall be declared void or unenforceable by any court or administration body of competent jurisdiction such portion shall be deemed to be severed from the remainder of these terms and the conditions of sale the remainder of which shall continue in all respects to be binding upon the parties and shall be valid and enforceable.

•  The failure by the Company to insist upon strict performance of right, owner or privilege conferred by these terms and conditions of sale or any contract of which they form part or any rights the Company has or may have against the Purchaser and no express waiver by the Company shall be deemed a waiver of any subsequent breach of the same or a similar provision.

•  DEFAULT

•  In the event that:

•  The Purchaser makes default in any payment hereunder, or

•  The Purchaser commits an act of bankruptcy or being a company, has an order to made by any competent court or for or passes a resolution for its winding up or enters into a scheme, or arrangement or has a receiver, receiver and manager, liquidator, provisional liquidator or administrator appointed to it or any of the events referred to in section 459(2) of the Corporations law occurs or,

•  The Purchaser breaches any term, covenant or condition in any other contract, agreement or understanding between the Purchaser and the Company, or

•  If there is any contract, agreement or understanding between the Company and any related company as that term is defined in the Corporations law or the guarantor of the Purchaser, and the related company or the guarantor of the Purchaser breaches any term, covenant or condition of such contract, agreement or undertaking, or

•  Where a related company or any guarantor of the Purchaser commits any act, matter or thing which, if they were the Purchaser, would be a breach of these terms and conditions;

THEN all monies owing and outstanding to the Company on any account whatsoever irrespective of whether any due date as set out in the invoice has occurred shall become immediately due and payable. In addition, the Company may without prejudice to its other rights suspend further deliveries, require payment in advance for such deliveries or terminate any contract or agreement made forwith by notice to the Purchaser.

•  Notwithstanding the above Clause, the Company may at all times at its sole and unfettered discretion and without being under any duty or obligation to assign reasons therefore, review, alter or terminate the Purchaser's credit limit or terms without notice and without limiting the generality thereof, the decision of the Company shall be final and the Company accepts no responsibility for any loss, howsoever arising incurred by the Purchaser due to the operation of this Clause.

•  FUTURE DEALING

•  Unless otherwise agreed to in writing by the Company and notwithstanding any terms appearing in documentation provided by or on behalf of the Purchaser, the terms appearing herein shall be incorporated by implication into all agreements by the Company to supply the Purchaser with goods.

•  ENVIRONMENTAL MATTERS

•  Should any legislation, rule, regulation, convention or standard come into effect which imposes an obligation upon the Company to collect or recycle any of the goods sold by it to the Purchaser or pay any deposit, levy, tax or impost in respect thereof, then the Purchaser shall reimburse the Company a reasonable sum to compensate the Company for all of its costs and expenses so incurred in respect of the goods sold by it to the Purchaser and the Purchaser shall indemnify and keep indemnified the Company in respect of all such costs and expenses.

•  The Purchaser acknowledges that non-refillable containers are sold on the condition that they are to be used only once. The Purchaser further acknowledges that failure to observe this condition may cause injury to persons or property and the Purchaser hereby indemnifies and shall keep indemnified the Company from any claim, proceeding, judgment, damages, losses, costs, expenses or liabilities arising from any such injury, loss or damage.

•  ADVICE AND ASSISTANCE

20.1 Where the Company provides any technical advice or assistance whatsoever to a Purchaser including, without limitation, product formulation, product manufacture, product analysis and testing, label production, setting up bottling lines or other equipment for filling and/or handling bottles, no liability for any damage whatsoever shall attach to the Company in respect of such matters including without limitation, damage arising out of or in connection with the negligence of the Company, its servants or agents or otherwise.