1.1 Australian Consumer Law: the Australian Consumer Law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
1.2 Claim: includes all actions, suits, causes of action, arbitrations, debts, dues, costs, expenses, claims, demands, proceedings, complaints, objections, obligations, liabilities, interest, verdicts, orders and judgments, including any claim for restitution, unjust enrichment, compensation, reimbursement, contribution, damages or indemnity either at law or in equity or arising under a statute and whether or not the matter giving rise to those claims are known to the parties as at the date of these Terms, actual or contingent.
1.3 Confidential Information: means:
(a) in respect of us:
(i) our Intellectual Property Rights:
(ii) all Information relating to the Products and Services;
(iii) all Information we submit or disclose to you;
(iv) all Information learned or accessed by you from us,
at any time and includes without limitation (but by extension):
(v) Information which at the time of disclosure by us is identified as being confidential;
(vi) Information which, of implied necessity, is confidential;
(vii) Information which you know or ought reasonably be expected to know is confidential;
(viii) any agreement, arrangement or understanding relating to the Products and Services;
(ix) all designs, plans, drawings, specifications, data sheets and information pertaining to the Products and Services or to any Intellectual Property in the Products and Services;
(x) all Intellectual Property Rights in the Products and Services;
(xi) all our commercially sensitive documents and information (including customer details, financial data, business plans and personal information); and
(xii) the content and subject matter of these Terms,
(b) in respect of you: any Information you give us which you indicate in writing is confidential.
1.4 Consequential Loss: any remote or indirect loss or damages, loss of production, loss of revenue, loss of profit, loss of business reputation, business interruptions, loss of goodwill, loss of opportunities, loss of anticipated savings or wasted overheads.
1.5 Data Sheet: the relevant safety data sheet and/or product data sheet included in or annexed to a Quote or as otherwise provided by us to you in writing.
1.6 Delivery Date: the following relevant date:
(a) In respect of Product that we do not apply – the date we deliver the Product to you;
(b) In respect of Product and Services where we apply the Product – the date we apply the Product or provide the Services;
(c) In respect of Equipment is provided on hire – the date we make the Equipment available for collection by you; or
(e) To the extent that clause 3 applies – the deemed date of delivery.
You acknowledge that the delivery may be in instalments, in which case there will be a different ‘Delivery Date’ for each instalment.
1.7 Equipment: all equipment including trailers, trucks, tanks, or other similar items and all associated keys, remote controls, opening devises, and accessories such as steel rims and tyres, pumps, regulators and brakes that we provide to you.
1.8 Force Majeure Event: means any event or circumstance that:
(a) is not within a party’s reasonable control; and
(b) cannot reasonably be prevented or circumvented by a party taking reasonable precautions; and
(c) prevents, hinders or delays a party from performing any of its obligations under these Terms including:
(i) any act of God or inclement weather;
(ii) epidemic, pandemic or other government restrictions or public health and safety emergency;
(iii) war, armed conflict, imposition of sanctions, embargo, blockade, terrorist attack, civil commotion or riots;
(iv) sabotage, malicious damage or vandalism;
(v) any action taken by a Government Agency, including, imposing an export or import restriction, quota or prohibition, or failure to obtain or delay in obtaining a necessary approval, permit, licence or consent, where the relevant party has taken all reasonable steps to obtain that approval, permit, licence or consent;
(vi) labour or trade dispute, strikes, industrial action or lockouts;
(vii) non-performance by suppliers or subcontractors;
(viii) interruption, material reduction in the rate of, or failure of any utility service;
(ix) breakage, failure or malfunction of, or accident involving, any plant, equipment, machinery or other facility owned or operated by a party or its Related Bodies Corporate that occurs notwithstanding that the party or Related Body Corporate has taken all reasonable steps to avoid or guard against such an event.
1.9 Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
1.10 GST Act: A New Tax System (Products and Services Tax) Act 1999 (Cth).
1.11 Hire Schedule: the hire schedule annexed to the Quote or otherwise provided by us to you in writing.
1.12 Information means information, inventions and ideas, which may be:
(a) oral, written, recorded or stored by electronic, magnetic, electromagnetic, or in other form, process, media or otherwise in a machine readable form; or
(b) translated from the original form, re-compiled, made into a compilation, partially copied, modified, updated or otherwise altered.
1.13 Intellectual Property Rights: all present and future rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, service marks, designs, patents, circuit layouts, plant varieties, business and domain names, database rights, the right to have confidential information kept confidential (including know how, trade secrets and datasets), inventions and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields existing anywhere in the world, whether or not registered or capable of registration, and any goodwill associated with such activity and any applications, renewals and extensions of such rights.
1.14 Loss: any loss, liability, damage, cost or expense of a property, personal or other nature arising and whether present or future, known or unknown, actual or contingent, including all legal and other professional expenses on a solicitor client basis incurred in relation to investigating, disputing, defending or settling any Claim (including any Claim based on these Terms).
1.15 Other Property: all of your Secured Collateral, and your present and after-acquired rights and interests in Secured Collateral, that is not Personal Property.
1.16 Personal Property: means all of your present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) and all present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) in which you have rights.
1.17 PPSA: Personal Property Securities Act 2009 (Cth).
1.18 Price Schedule: the pricing schedule of Products and Services included in or annexed to a Quote or as otherwise provided by us to you in writing.
1.19 Privacy Act: Privacy Act 1988 (Cth).
1.20 Product List: the list of Products we offer, included in or annexed to a Quote or as otherwise provided by us to you in writing.
1.21 Products: the products we provide you and, to the extent the Equipment is provided on hire, includes the Equipment.
1.22 Quote: means the relevant document we advise you is, or is labelled as, a ‘Quote’.
1.23 Related Bodies Corporate: has the meaning given in section 9 of the Corporations Act 2001 (Cth).
1.24 Secured Collateral: all your present and future assets, and all your present and after-acquired property, of any nature or description (including any real property), situated anywhere in Australia or overseas and all your legal right, title and interest to or in each of those assets, and each item of that property, at any time.
1.25 Security Interest:
(a) in relation to any Personal Property, a Security Interest as defined in the PPSA;
(b) in relation to any Other Property means:
(i) any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust, arrangement, caveat, assignment, bill of sale, hypothecation, power, title retention, deposit arrangement or power;
(ii) right, interest or arrangement that has the effect of giving another person a preference, priority or advantage over creditors including any right of set-off;
(iii) an easement, restrictive covenant, caveat, priority notice or similar restriction over property; or
(iv) any agreement to create any of them or allow them to exist.
1.26 Services: the services we provide to you.
1.27 Site: the site where we will provide the Products and Services to you as set out in the Quote or as otherwise agreed in writing by us.
1.28 these Terms: these terms and conditions.
1.29 us: all references to “us”, “we”, “our” etc, refer to Vital Chemical Pty Ltd ACN 009 988 005 and Vital Environment Pty Ltd ACN 614 123 170, and each of their officers, employees, consultants, subcontractors and agents.
1.30 you: all references to “you”, “your”, etc refer to the entity that we deal with in relation to the Products and Services (whether or not those Product and Services are provided), its representatives and if more than one, each of them jointly and severally.
2.1 These Terms apply to the provision of all Products and Services.
3.1 Authority. You warrant that your officers, employees or agents have authority to enter into and bind you to these Terms and any agreed variation and such authority will not be revoked for the duration that these Terms apply.
3.2 Quote. All Quotes include any applicable Product List, Price Schedule, Hire Schedule and Data Sheet (whether provided to you at the same time or not) and are subject to these Terms. Any Quote we give you is open for acceptance for the period set out in the Quote and, if no date is stipulated in the Quote, within 14 days from the date we provide it to you. You are responsible for checking the Quote carefully before accepting it to ensure it is complete and accurate. We may provide you with a Quote for each request for Products and Services you make.
3.3 Acceptance. You accept the Quote on the date which is the earlier of:
(a) you making payment in accordance with the Quote;
(b) you notifying us the Quote is accepted (in writing or otherwise); or
(c) the Delivery Date.
3.4 Price. The price is the amount stated in the Quote and in accordance with the relevant Price Schedule. In the event there is any inconsistency between the price in the Quote and the Price Schedule, the price in the Quote will prevail. If there is an increase in cost of input materials or labour between the date of the Quote and the Delivery Date, we may increase the price in the Quote to cover the increase in those costs. If we increase the price, we will notify you in writing and provide such evidence as we consider justifies the increase in costs and you will be bound by the increased price.
3.5 Methods of payment. We accept payment by electronic funds transfer, cheque or corporate card including Mastercard, Bankcard, Visa or American Express. Where the credit card provider imposes a surcharge, you may need to reimburse us for that surcharge at the time of payment.
3.6 Changing these terms. We may change these Terms if we: (a) give you reasonable notice before those changes come into effect (and in any event no less than 30 days’ notice) (Change Notice Period); and (b) make reasonable efforts to notify you of those changes. Without affecting any accrued rights or obligations of the parties: (a) you may terminate the accepted Quote at any time during the Change Notice Period; and (b) if you do not terminate the accepted Quote during Change Notice Period, the new Terms will apply from the date immediately after the Change Notice Period.
3.7 Instalments. We may supply or deliver the Products and Services by instalments. Each instalment will be deemed to be sold under a separate contract. You cannot cancel the accepted Quote if we supply or deliver the Products and Services in instalments or fail to deliver one of the instalments.
3.8 Damaged or defective Products unapplied. You may reject Products that have not been applied and are damaged or defective provided you give us written notice of rejection (Rejection Notice) for an apparent defect, within 48 hours of the Delivery Date.
3.9 Evidence of damaged or defective Products. If you provide us with a Rejection Notice, we may request photographic or other evidence or information from you before we accept your Rejection Notice including how and where the Products were stored by you. If we reasonably believe the Products were damaged by any act, neglect or default on your part, we may refuse (acting reasonably) to accept a return of the Products or refund any monies paid by you. If we accept your Rejection Notice, we will repair or replace the Products in our discretion.
3.10 Damaged or defective Products applied. If within 24 hours of the Delivery Date for Products applied by us, you have notified us in writing that the Product is defective, we may re-attend the applied area to make a determination whether the Product is defective. If we determine (acting reasonably) that the Product is defective, we may rectify the issue including re-applying the Product at our cost. If you do not give us a Rejection Notice within 24 hours of the Delivery Date you accept that the Product and Services is free of all damages and defects.
3.11 Invoicing: All invoices must be paid by you within 30 days from the date that the invoice was issued or such shorter time as stipulated on the Quote without any deduction or set-off. You are responsible for all applicable taxes and statutory charges including but not limited to GST. If you fail to make a payment by the Delivery Date, then, without limiting our rights and remedies under these Terms and at general law, we may charge you interest at the rate of 15% per annum accruing daily and capitalised monthly up to and including the date you make payment in full. You will be liable for our Loss in recovering, or attempting to recover, amounts you owe us including debt collection agency fees.
4.1 Cancellation: If you cancel an accepted Quote up to 48 hours prior to the projected date of delivery in your accepted Quote we will only charge you the costs we reasonably incur in fulfilling the accepted Quote up until the date you notify us of the cancellation. If you cancel an accepted Quote less than 48 hours before projected date of delivery in your accepted Quote you are liable for the full amount pursuant to the accepted Quote.
4.2 Unable to deliver. If we are unable to provide the Products and Services to you on the projected delivery date in your accepted Quote and that inability was caused or contributed to by:
(a) a Force Majeure Event that lasts for no more than 60 days without any act or omission by you – the Delivery Date will be delayed until a date agreed between you and us, and failing agreement, the next available date that we can deliver the Products and Services to you following that Force Majeure Event;
(b) an act or omission by you – we are relieved from delivering the Products and Services to you and you are liable for the full Price in the accepted Quote as if delivery had occurred on the Delivery Date; or
(c) any other event including a Force Majeure Event that lasts for more than 60 days – we will notify you in writing and we may elect to:
(i) amend (by mutual agreement) the delivery date for the Products and Services; or
(ii) cancel the accepted Quote and refund any amount paid.
4.3 Failure to accept delivery. If you fail to take or accept delivery of the Products and Services on the Delivery Date, then, except where caused by our failure to comply with these Terms:
(a) delivery is deemed complete at 9.00 am on the Delivery Date; and
(b) we will invoice you the full amount plus any Loss that we suffer or incur as a result, payable immediately on demand.
5.1 Custom seed. Any custom seed we provide you as part of the Quote will be charged in accordance with the Price Schedule or any other written specification we provide to you. If you seek to cancel, amend or change the seed specifications (including a reduction in quantity of seed) after accepting the Quote, you will be liable for the full amount per the Quote.
5.2 Availability of Custom Seed. Custom seed is subject to availability. If the type or quantity of custom seed is wholly unavailable after you accept the Quote but before we mobilise, then:
(a) the parties may agree (in writing) to substitute the custom seed; or
(b) the parties may agree (in writing) to delay providing the Products and/or Turnkey Application (as that term is defined in clause 10 of these Terms) until it is available; or
(c) only if there is no substitute available and the delay in providing the custom seed would substantially and adversely affect you, you may elect to cancel the accepted Quote and we will refund you any amount paid and you will release us from any Loss or Claims arising from or in relation to not being able to provide the custom seed.
5.3 Seed certificates. If you require seed analysis certificates for each species of custom seed the cost for the certificates will be charged to you in addition to the Quoted amount without prior notice.
6.1 Purchase on credit. If you wish to purchase Products and Services on credit, you must complete the ‘Credit Account Application Form’. Until we grant credit by notice in writing to you, or if having granted credit, we exercise our powers to withdraw, refuse or suspend credit under these Terms, we will only supply Products and Services to you on the basis of cash in advance. The granting of credit does not oblige us to extend any particular amount of credit to you.
6.2 True and correct. You warrant all information provided to us in connection with any credit application or to induce us to provide the Products and Services is true and correct, and not misleading or deceptive.
6.3 Information and credit reports. We may (in our absolute discretion):
(a) refuse your application for credit;
(b) withdraw, vary or otherwise deal with credit facilities on reasonable prior notice; and/or
(c) withhold supply or take any other action irrespective of whether a Quote has been accepted if for any reason we determine no further credit is to be extended to you.
6.4 Warrant, authorise and consent. You and any person that signs the Credit Application Form:
(a) warrant none of you, that person or your members are undischarged bankrupts, have been bankrupt, convicted of any criminal offence or have pending criminal court proceedings;
(b) authorise us to collect, update and use information (whether personal or otherwise) about you and that person or that is collected from third parties permitted under the Privacy Act (including disclosing information in the manner permitted by the Privacy Act in accordance with our privacy policy) (Credit Information);
(c) consent to us obtaining from credit providers information which they are allowed to give us under the Privacy Act about your and that person’s creditworthiness;
(d) consent to us providing information (including Credit Information) to credit reporting agencies in relation to us providing credit or recovering amounts you or that person owe including disclosing:
(i) that you or any person have applied for credit and the amount;
(ii) we are a credit provider to you or that person;
(iii) payments more than 60 days overdue;
(iv) payments that are no longer overdue;
(v) that a cheque drawn by you or that person has been dishonoured more than once; and
(vi) whether any credit provided by us to you or that person has been discharged;
(e) consent to us providing information to other credit providers, mortgage insurers and debt collectors including disclosing the Credit Information for the following purposes:
(i) assessing any application by you or that person for credit;
(ii) assisting you or that person to avoid defaulting on your credit obligations;
(iii) notifying credit providers of a default by you or that person;
(iv) assessing your or that person’s credit worthiness, history or capacity;
(v) where we suspect an unlawful activity has been or may be engaged in and the Credit Information is necessary for investigating or reporting the matter;
(vi) where we are required to disclose information to comply with our legal obligations;
(f) acknowledge and agree this clause 4 will continue to remain in full force and effect until all credit facilities cease to be made available to you or that person.
6.5 Guarantor. Where a guarantor is specified in the ‘Credit Account Application Form’ that guarantor must sign the personal guarantee and indemnity. In a form required by us. If the guarantor does not sign the personal guarantee and indemnity we reserve the right to cancel the accepted Quote on written notice without penalty to us.
6.6 Principal obligation. The guarantor’s guarantee is a principal obligation and a continuing guarantee and will not be affected by any act or omission by either of us and will be binding on the guarantor despite any irregularity in the guarantee or its execution including if one of the named guarantors does not sign.
7.1 Your obligations. It is your responsibility to ensure (at your cost):
(a) the terms of your Quote are complete and accurate;
(b) you cooperate with us in all matters relating to the Products and Services;
(c) you read and comply with any Product List, Price Schedule, Hire Schedule and Data Sheet we provide you;
(d) you use the Products for their intended use only and in accordance with these Terms, and any manuals, directions, or instructions that we provide you about those Products;
(e) you provide us with access to the Site, premises or other facilities we reasonably require to provide you with the Products and Services;
(f) you provide us with all information and materials we may reasonably require to provide the Products and Services to you, and ensure such information is complete and accurate in all material respects;
(g) the Site is safe and ready for us;
(h) you obtain and maintain all necessary licences, permissions and consents required before the date on which we are to provide the Products and Services to you; and
(i) you comply with all applicable laws, including health and safety laws at all times.
7.2 Right to enter. You grant us an irrevocable licence to enter the Site or any other property we know, or reasonably believe, the Products are located to inspect or seize the Products or otherwise enforce our rights under these Terms and you will do all things reasonably necessary to assist us in exercising our rights. You indemnify us for any Loss or Claims including damage to property or personal injury as a result of exercising our rights. If we seize or retake possession of any Products, we may deal with them as we think fit and invoice you for the full amount. You will be liable for our Loss as a result of exercising our rights to retrieve the Products. This clause survives termination.
7.3 Risk. You bear the risk of:
(i) loss or theft of, or damage to, the Products from the date we deliver the Products to the Site; and
(ii) any deterioration, loss or damage to your property at all times caused or contributed to by the Products and/or Services.
7.4 Loss or damage. After risk in the Products passes to you, if those Products are lost, stolen, damaged or destroyed, you are liable for any Loss we suffer or incur as a result and we will be entitled to full payment of the Products.
8.1 Consequential Loss. Subject to clause 3 we are not liable for any Consequential Loss however caused, suffered or incurred by you in relation to these Terms or the Products and Services.
8.2 Aggregate Liability. Subject to clause 3 our aggregate liability to you under or in relation to these Terms for all Claims whenever made, arising out of any one act, omission or event and any one series of related acts, omissions or events is limited to the amounts paid or payable to us pursuant to clause 2 of these Terms in the 12 month period prior to the act, omission or event or the first in the series of acts, omissions or events.
8.3 Australian consumer law. Nothing in these Terms is intended to limit any right you may have under Australian Consumer Law (Non-Excluded Guarantees). If Australian Consumer Law, or other law, states there is a Non-Excluded Guarantee in relation to the Products and Services, and our liability for failing to comply with that guarantee cannot be excluded, but may be limited, except to the extent permitted by law, then our liability for breach of a condition or warranty implied by any legislation, including Australian Consumer Law, is limited to the following remedies (at our discretion):
(a) in the case of Products, any one or more of the following:
(i) the replacement of the Products or supply of equivalent Products including reapplying the area with additional Product;
(ii) the repair of the Products;
(iii) the payment of the costs of replacing the Products or of acquiring equivalent Products; or
(iv) the payment of the costs of having the Products repaired; and
(b) in the case of Services:
(i) supply of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
8.4 Exclusions and limitation of liability. Subject to the Non-Excluded Guarantees, you expressly agree and acknowledge:
(a) the Products and Services are provided to you at your sole risk and we give no guarantee, warranty, undertaking or representation in relation to them, including quality, fitness for any purpose, or compliance with any description or sample, or otherwise;
(b) all information and specifications provided by us in relation to the Products and Services are approximations only and subject to any Non-Excluded Guarantees and small deviations or slight variations from them which do not substantially affect the provision of the Products and Services will not entitle you to reject the Products and Services, or to make any Claim in respect of them;
(c) any advice, recommendation, guide, information or assistance we provide in relation to the Products and Services is given in good faith and believed to be accurate, appropriate and reliable at the time it is given and is provided without any warranty of accuracy, appropriateness or reliability and we do not accept any liability or responsibility for any Loss as a result of your reliance on same; and
(d) we take no responsibility for any services hit, damaged, exposed during or in relation to the use of the Products and Services.
(e) all warranties and representations other than those expressly set out in these Terms or in the Quote are excluded;
(f) to the maximum extent permitted by law, you release and discharge, and indemnify and hold us harmless, from and against all Loss and Claims arising out of or in relation to:
(i) any defect, deficiency or malfunction in the Products and Services that arose from (directly or indirectly, wholly or partially) any act, matter or circumstance after the Products and Services are delivered to the Site except to the extent caused by our default or negligence;
(ii) any environmental harm (including land or water contamination) caused by or in relation to the provision of the Products and Services unless we have failed to take all reasonable and practicable measures to prevent the harm and comply with our environmental obligations at law;
(iii) any breach of our Intellectual Property Rights;
(iv) any omission, neglect or default by you, your employees, contractors, agents or third parties;
(v) use of the Products by any person (including third parties);
(vi) any damage to any property caused or contributed to by the Products and Services except to the extent caused by our default or negligence; or
(vii) any injury or death of any person caused or contributed to by the Products and Services except to the extent caused by our default or negligence;
(viii) recovery and the balance of any amount owing to us; and
(ix) any demand or action by any person in connection with any Loss arising from or incidental to the provision of the Products and Services, any request for the Products and Services or the subject matter of these Terms.
8.5 Unauthorised provision of Products and Services. Any person who provides the Products and Services without authorisation will void all warranties to the fullest extent permitted by law.
8.6 Workplace Health & Safety (WHS). Although we are responsible for ensuring the Products and Services we provide or apply are provided safely and in compliance with all applicable laws and regulations, you must comply with such obligations and advise us in advance of any real or potential risks or safety concerns. Unless specified, all Quotes exclude costs for safety equipment including barricades, additional tradespeople or other safety apparatus that may be required to ensure the Products and Services can be provided safely and in compliance with WHS regulations (or similar). If such safety items are required, it will be your responsibility to organise and pay for safety equipment.
9.1 Charge. To secure your obligations under these Terms, including payment of all monies owed by you to us, you:
(a) grant a Security Interest in; and
(b) additionally and separately, charge by way of equitable mortgage,
the Secured Collateral to and for the benefit of us:
(c) by way of a Security Interest, in relation to any Personal Property;
(d) by way of specific or fixed charge, in relation to any Other Property;
(e) by way of floating charge, in relation to Other Property, comprising any:
(i) book debts or other debts;
(ii) moneys, funds or sums of any form or nature, representing or being any credit or balance, whether denominated in Australian or foreign currency, deposited, applied or held by or on behalf of you to, in or into any current, term, deposit or other account held at any time by you with any bank or other financial institution in your name, whether alone, jointly or jointly and severally with any other person, and whether under a single contract or any number of separate contracts; and
(iii) accretions credited to any account specified in clause 1(e)(i) in relation to the principal sums comprising those moneys, funds or sums, whether in the nature of interest or otherwise.
9.2 Security. On our request, and without limiting the general nature of the charge outlined in this clause 9.1, you will execute any documents and do all things necessary to create and register a mortgage security or other instrument of security over such property outlined in clause 9.1 on terms satisfactory to us. Where you do not do so within a reasonable time of our request, you irrevocably appoint each officer or solicitor appointed by us to be your true and lawful attorney to execute and register those security instruments.
9.3 Costs. You indemnify us on a full indemnity basis (which means you cover all costs that become payable by us including legal costs on an own solicitor client basis) against our Loss in relation to the preparation and registration of any such charge and mortgage documents.
9.4 Consent. You acknowledge and agree to:
(a) consent unconditionally to us lodging a caveat or caveats noting our interest in any of your real property;
(b) sign any documents and provide all assistance required for us to attend to the registration, perfection and maintenance of any Security Interest including registration of a financing statement or financing change statement;
(c) ensure our security position, rights and obligations, are not adversely affected by the PPSA; and
(d) not register, or allow a third party to register, a financing change statement in respect of a Security Interest relating to these Terms, without our prior written consent.
9.5 Instalments under PPSA. For the purposes of the PPSA:
(a) Products and Services provided by instalment made under these Terms are not a separate security agreement but form part of these Terms together with any credit application, guarantee or indemnity or other contractual documents;
(b) an instalment contract is, and is deemed to be, a single security agreement for the purposes of the PPSA; and
(c) these Terms form a continuous security agreement with any prior terms and do not constitute a separate security agreement. This applies regardless of any term to the contrary in these Terms, any invoice or any other document.
9.6 Change of details. You acknowledge and agree you will not change your name, ACN or ABN or other details required on the PPSR, without first notifying us in writing.
9.7 Contracting out. You acknowledge and agree to waive your right to receive any notice under the PPSA (including notice of a verification statement under section 157) unless the notice is required by the PPSA and cannot be excluded. To the fullest extent permitted by the PPSA, the parties agree to contract out of sections 95, 117, 118, 120, 121(4), 125, the second sentence of section 126(2), sections 129(2), 129(3), 130, 132(3)(d), 132(4), 134(2), 135, 136, 137, 142 and 143.
9.8 Non-disclosure. The parties agree not to disclose information in connection with these Terms not publicly available except if the information is:
(a) disclosed with the prior written consent of the other party;
(b) disclosed to each party’s officers, employees, auditors, legal or other advisers; or
(c) required by any law or stock exchange to be disclosed (except this clause does not permit us to disclose any information of the kind referred to in section 275(1) PPSA unless sections 275(7) PPSA applies).
10.1 Personal Information. If you provide us with personal information (as defined in the Privacy Act) about any individual, you warrant that you have that individual’s consent having regard to our privacy policy.
10.2 Use of Information. We may collect, use and disclose personal information for purposes of contracting with you under these Terms, monitoring and enforcing Security Interests, providing the Products and Services to you, processing your payment, business development, debt collection and customer relationship management. Further details of how we deal with personal information is set out in our privacy policy on our website, https://vitalindustries.com.au/termsconditions/.
10.3 Marketing. We may provide marketing communications to you by email and other means, unless you opt out.
10.4 Intellectual property. We own and retain all Intellectual Property Rights in and connected to our business, the Products and Services and any related materials. You will not at any time do any act inconsistent with our Intellectual Property Rights. You warrant any drawings, designs, specifications or instructions you provide us for the purpose of providing the Products and Services will not cause us to infringe any Intellectual Property Rights, trade mark or similar and you indemnify us against any Claim in relation to any actual or alleged infringement.
11.1 Force majeure. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Terms caused by a Force Majeure Event. If a Force Majeure Event takes place which will, or is likely to affect the performance of our obligations under these Terms:
(a) we will contact you as soon as reasonably possible to notify you of the Force Majeure Event and provide, if practicable, the predicted date it started and its likely duration; and
(b) our obligations to provide the Products and Services under these Terms will be suspended and the time for performing our obligations will be extended for the duration of the Force Majeure Event.
11.2 Termination due to Force Majeure. We will use reasonable endeavours to mitigate or minimise the effect of the Force Majeure Event on the performance of our obligations under these Terms. If the Force Majeure Event prevents, hinders or delays the performance of our obligations for a continuous period of more than 60 days, either party may terminate the accepted Quote by giving one weeks’ written notice to the other party. If you terminate, we will refund the price you have paid, less the charges reasonably and actually incurred by us in performing our obligations under these Terms up to the date of termination.
12.1 Retention of title. To the extent we supply Products to you for purchase (whether on credit or consignment or otherwise), this retention of title clause 12 Until you have paid all amounts owing to us in full we retain title in the Products and you must, until the date the Products are applied to the Site:
(a) possess the Products solely as bailee for us;
(b) store the Products safely and not cause the Products to lose their identifiable character or be intermingled with other Products before they are applied to Site, except with our prior written consent;
(c) ensure the Products remain free from dirt and dust and are protected from harm and damage and otherwise kept in accordance with any applicable Data Sheet before they are applied to the Site;
(d) not alter, remove or tamper with any marks, numbers or labels on the Products or packaging;
(e) only dispose of the Products in the ordinary course of your business to bona fide customers;
(f) not claim a right or interest in the Products to secure any liquidated or unliquidated debt or obligation that you claim we owe to you;
(g) not claim any lien over the Products;
(h) not create any absolute or defeasible interest in the Products in relation to any third party except with our prior written consent; and
(i) provide us access to where the Products are stored to inspect and/or seize the Products in accordance with these Terms.
12.2 Right to Proceeds. If you sell or dispose of the Products, you will hold the proceeds of sale or disposal on trust for us in a separate bank account to secure payment of any amounts you owe us. Our Security Interest in the Products continues in any proceeds of sale or disposal. You must not mix the proceeds with any other amount or use them to pay a debt.
13.1 Insurance. Unless otherwise agreed in writing, you are responsible to take out and maintain (or caused to be taken out and maintained) insurance for:
(a) your property at all times and the Site; and/or
(b) the Products until all amounts owing to us are paid in full, for their full insurable or replacement value (whichever is higher); and/or
(c) public risk insurance for an amount of at least $20,000,000.00.
13.2 Insurer. You must, if requested by us, take out the relevant insurance policies with a reputable insurer noting our interest in the Products and our interest in being an occupant of the Site. On our request, you must promptly provide a copy of the certificate of currency for the insurance policy and details of the cover.
14.1 Termination. Without affecting any other right or remedy available to it, either party may terminate an accepted Quote for any reason by giving to the other party at least 30 days’ written notice.
14.2 Notwithstanding anything else:
(a) you may terminate an accepted Quote immediately by giving written notice to us if we:
(i) fail to pay an amount due under these Terms;
(ii) commit a material breach of these Terms which is not capable of remedy or if that breach is capable of remedy, fail to remedy that breach within 14 days after being notified in writing to do so;
(iii) repeatedly breach these Terms in a manner to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to these Terms; or
(iv) commit an act pursuant to which bankruptcy or insolvency proceedings may be commenced;
(b) we may terminate an accepted Quote immediately by giving written notice to you if you:
(i) fail to pay an amount due under these Terms;
(ii) breach these Terms; or
(iii) commit an act pursuant to which bankruptcy or insolvency proceedings may be commenced.
14.3 On termination under clause 1:
(a) each party must promptly return to the other party all equipment, materials, documents and property belonging to the other party including any Equipment and unapplied Products;
(b) all amounts owed or owing to us become immediately due and payable; and
(c) we may, without notice to you:
(i) immediately recover possession of the unapplied Products and you waive the right to receive any statutory or PPSA notice;
(ii) cease providing to you, and cancel future deliveries of, the Products and Services;
(iii) exercise any right or remedy available under contract, the PPSA or any other applicable law, including to enforce any Security Interest;
(iv) terminate any existing credit account you have with us; and
(v) commence proceedings to enforce payment of any outstanding amounts and any Loss we incur in enforcing our rights.
14.4 Loss. Where you are in breach of these Terms, we will not be liable for any Loss you incur or suffer resulting (directly or indirectly) from the exercise of our rights under these Terms or our failure or delay in providing the Products and Services to you in accordance with this clause 14. You are responsible for any Loss we suffer or incur arising from or in relation to your breach.
15.1 Relevant law. These Terms will be construed in accordance with the laws of Queensland and the parties submit to the exclusive jurisdiction of the Queensland Courts.
15.2 Waiver. The failure of either of party to exercise any rights under these Terms will not waive that right, nor will any practice developed between us waive or lessen our respective rights under these Terms.
15.3 Severance. Any provision of these Terms which is found by a Court of competent jurisdiction or any competent Government authority to be invalid, illegal or unenforceable, will be severed from these Terms and will be deemed never to have been part of them.
15.4 No restraint. No provision expressed or implied in these Terms restricts our right to provide the Products and Services to third parties.
15.5 Confidentiality. At any time during or after termination of these Terms, both parties undertake not to disclose any of these Terms, or any Confidential Information except:
(a) where the information is in the public domain;
(b) if it is required to be disclosed by applicable law or for use in legal proceedings regarding these Terms;
(c) where the disclosure is expressly permitted under these Terms;
(d) to each party’s officers, employees and professional advisers to the extent necessary to properly perform all obligations under these Terms or to conduct business generally, in which case each party must ensure such persons keep the information confidential and not disclose it to any other person; or
(e) if the party to whom the information relates has given its prior written consent.
15.6 Notice. Any notice to be given under these Terms must be in writing and given to the other party either by pre-paid post or electronic mail (email) to the last notified postal or email address of the other party. Any notice sent by post will be deemed to be given at the time when by the ordinary course of post it would have been delivered. Any notice given by email will be deemed to have been given at the time it was sent unless an automated response is received that the email has not been sent.
15.7 Entire agreement. Unless agreed otherwise in writing these Terms apply to all Quotes and requests for Products and Services and includes all schedules, lists, forms and annexures we provide you with. These Terms supersede all prior communications, negotiations, arrangements and agreements, whether oral or written, in respect of any matter the subject of these Terms.
15.8 Altering the agreement. These Terms can only be amended, varied or altered in writing signed by both parties.
15.9 Assignment. We may assign or transfer our rights and obligations under these Terms to another entity but will always notify you in writing if this happens. You may only assign or transfer your rights or your obligations under these Terms to another person if we agree in writing. A breach of clause 15.9 by you entitles us to immediately terminate an accepted Quote. If you accept a Quote via a corporation whose shares are not traded on the Australian Stock Exchange, any change in the corporation’s shareholding and/or directorship will be deemed an assignment under this clause requiring our prior written consent, which consent can be withheld in our absolute discretion.
15.10 Time. Time is of the essence in this Agreement.
15.11 GST. Where the GST Law (or any similar tax) applies to any supply under or in connection with these Terms (including any supply as defined by GST Law) and you are required to make payment for that supply to us, then you will pay the applicable GST in addition to the base amount payable.
To the extent that your Quote relates to Products being provided on consignment, in addition to the ‘GENERAL TERMS’, this ‘CONSIGNMENT TERMS’ section also applies. The ‘CONSIGNMENT TERMS’ will apply to the extent of any inconsistency with the ‘GENERAL TERMS’.
16.1 Delivery docket. We will provide you with a delivery docket upon the Delivery Date of the Products. You must sign the delivery docket and return it to us either at the time we deliver the Products to you or by email no later than 24 hours after delivery. Once we receive the signed delivery docket, we will provide you with a declaration form containing information relating to the Products (Declaration) by email. You must complete the Declaration and return to us by email on the 25th day of each month for the duration that we provide you Products on consignment. If the 25th day is not a business day, the Declaration must be emailed to us on the next business day.
17.1 Your obligations. You must:
(a) sell or otherwise return the Products to us in accordance with these Terms and as stated in the Quote;
(b) not represent to any third parties you are acting for us in your dealings with the Products;
(c) keep current and accurate records of the Products being held and sold by you and allow us to access the records upon request;
(d) assist us in carrying out inspections (at least twice a year) and random audits;
(e) notify us of the sale of Products and re-order those Products from us as required on at least a monthly basis;
(f) pay all money owing to us as and when due;
(g) not allow any person (other than us) to have or acquire a Security Interest in the Products;
(h) comply with our reasonable directions and instructions in relation to the Products;
(i) display any Products which are not already marked or labelled with a label that reads ‘all contents are the property of Vital Chemical Pty Ltd until purchased’;
(j) use best endeavours to ensure the Products are sold at a turnover rate mutually agreed in writing;
(k) sell the Products at the price specified in the Price Schedule unless otherwise agreed in writing;
(l) not make any representations or give any warranty in relation to the Products unless expressly authorised by us in writing;
(m) not admit liability on our behalf in respect of any complaint or Claim in relation to the Products;
(n) not resolve, settle or attempt to resolve or settle any complaint or Claim in relation to the Products which may result us incurring any liability to any third party;
(o) deal promptly with all complaints or Claims in relation to the Products which will not result in us incurring any liability;
(p) not do anything that may affect our reputation or the reputation of the Products;
(q) use best endeavours to exclude or limit our liability for breach of any warranties or other legal duties to your customers to the maximum extent permitted by law, including by you inserting an exclusion or limitation of liability provision in any agreements or contract for the sale of Products.
17.2 Third party contracts. We will not be bound by, or liable under, any contract, agreement or arrangement (whether written or oral) you have or enter into with third parties for the sale of, or dealings with, the Products.
18.1 Return time. If you have failed to:
(a) sell the Products;
(b) use the Products;
(c) return the Products to us; or
(d) do any combination of (a) to (c),
within 3 months from the date we delivered the Products to you, we may (at our discretion) take back the Products, or
within 12 months from the date we delivered the Products to you, we may be (at our discretion):
(i) take back the Products if they are in an as-new condition; or
(ii) deem the Products to have been sold or used by you and invoice you for the Products,
and any Loss we suffer or incur in taking (or attempting to take) possession of the Products or attempting to recover payment from you.
18.2 Returns. We will not accept the return of Products that are not in an as-new condition or are damaged, defective or otherwise unsaleable. If the Products are not in the condition to be returned to us, we will invoice you for the full cost of the Products.
18.3 Inspection. If we determine, on inspection or otherwise, Products are missing, damaged or have been sold or disposed of, we will invoice you for those Products.
18.4 Right to Trace. If you sell the Products to a third party, we have the right to recover any monies owing to you for that sale and to trace and recover the proceeds of that sale and we will not be liable for any Loss you suffer or incur as a result.
To the extent that your Quote relates to Products on hire, in addition to the ‘GENERAL TERMS’, this ‘PRODUCTS ON HIRE TERMS’ section also applies. The ‘PRODUCTS ON HIRE TERMS’ will apply to the extent of any inconsistency with the ‘GENERAL TERMS’.
The following definitions apply to this section in addition to the ‘GENERAL TERMS’ definitions.
19.1 Hire Period: the agreed period you will hire the Equipment stated in the Hire Schedule or otherwise agreed in writing.
19.2 Hire Place: (unless we agree orally or in writing to deliver and/or collect the Equipment) the place the Equipment must be collected from and returned to, stated in the Hire Schedule or as agreed in writing.
19.3 Inspection Period: the earlier of the following periods commencing from when the Equipment is returned to us or we collect it from you (whichever applies):
(a) as soon as we have suitable staff available to carry out the inspection; or
(b) 14 days.
19.4 Return Time: (unless we agree to collect the Equipment) the date and time the Equipment must be returned by, stated in the Hire Schedule or as agreed in writing.
20.1 Delivery and collection. The Hire Schedule will state if we will deliver and collect the Equipment, or if you will collect it from and return it to the Hire Place by the Return Time. Unless otherwise agreed in writing, you must comply with the Hire Schedule.
20.2 Hire Period. Unless otherwise agreed in writing, the Hire Period will commence on the date stated in the Hire Schedule. The first and last days of the Hire Period are charged as full days. Public holidays and weekends are included in the Hire Period. If you return the Equipment to us before the end of the Hire Period, we may charge you for the full Hire Period.
20.3 Extension of Hire Period. The Hire Period can only be extended by agreement in writing and we may refuse any request for an extension at our discretion. If the Hire Period is extended, you will pay us at the rate we charge for the Equipment at the time of your request, based on each additional hour, day or month (as the case may be).
20.4 Availability. If the Equipment is not available, we will notify you in writing and you will not be charged for the period it is not available. We do not have to provide the Equipment to you unless and until it is available for hire and we will not be liable for any Loss you suffer or incur as a result (except to the extent caused by our default or negligence).
20.5 Unauthorised drivers. You must not allow any person to use the Equipment who:
(a) has not been approved by us in writing;
(b) is under the age of 18 or does not hold a valid licence to use the Equipment (if applicable);
(c) has alcohol or drugs (legal or otherwise) in their blood system or been advised by a medical professional (or similar) not to operate equipment of the same or similar nature of the Equipment; and
(d) gave false, misleading or incomplete details to us or intends to use the Equipment for any illegal or unlawful purpose or for any other purpose for which the Equipment was not intended.
20.6 Pre-hire Condition. You acknowledge and agree you have inspected the Equipment prior to taking possession of it and warrant you are:
(a) satisfied it is clean, in good repair and safe working order and suitable for the purpose you intend to use it; and
(b) aware of the proper and safe use for which it was
20.7 Hire Use. At all times, you must:
(a) use the Equipment:
(i) solely to load and apply our supplied Products specified in the Hire Schedule, Product List and Data Sheet;
(ii) in a safe and proper manner only for the purpose and within the capacity for which it was designed;
(iii) with due care and skill; and
(iv) in compliance all relevant authorities, laws, and regulations;
(b) obtain any relevant licences, consents, permits and approvals in connection with the Equipment (at your cost) and pay any traffic or other infringement received while using or in possession of the Equipment;
(c) observe the manufacturer’s instructions and Data Sheet when in possession of the Equipment;
(d) comply with all our directions, instructions and manuals communicated or otherwise made available to you (including QR codes located on the Equipment);
(e) wear suitable clothing and protective equipment when using the Equipment;
(f) keep the Equipment safe and secure;
(g) maintain the Equipment in the condition it was in when we delivered it to you;
(h) not allow any other person to use, hire or have possession or control of the Equipment unless you have our prior written approval;
(i) ensure you, and any approved person, are suitably trained to use the Equipment and (if necessary) obtain the relevant licence to perform high risk work;
(j) conduct a thorough job safety analysis prior to using the Equipment;
(k) display and comply with relevant safety signs and instructions (required by law) while using the Equipment;
(l) not deface, remove or alter any identifying marks, numbers, notices or safety information on the Equipment; and
(m) not load the Equipment in excess of its gross vehicle mass.
20.8 Repair. You are responsible for repairing the Equipment (including accessories, batteries and tyres) during the Hire Period at your cost (except for fair wear and tear). Before undertaking any repairs or maintenance, you must obtain our prior written approval to repair the Equipment.
20.9 Accident and damage. You must immediately notify us of any damage or incident involving the Equipment, or any other event or circumstances which may give rise to any Claim or Loss in connection with the Equipment. You must maintain a comprehensive record of the damage or incident and fully cooperate with us and our insurer. If the Equipment is damaged, you are responsible to pay any Loss including any charges not covered by insurance we suffer or incur except to the extent caused or contributed to by our default or negligence. If the cost of repair is greater than the Equipment’s value or the Equipment cannot be returned to us, you will be liable for the full replacement value of the Equipment (having regard to its age and general condition at the start of the Hire Period).
20.10 Loss or theft. You must advise us immediately of any loss or theft of the Equipment. If the Equipment is lost or stolen during the Hire Period you are liable for an excess cost to replace the Equipment.
20.11 Failure to return. If you fail to return the Equipment to the Hire Place by the Return Time, or prevent us from collecting the Equipment, then, in addition to other rights we have under these Terms or at law, you must pay us an ongoing hire fee at a daily rate for each day or part thereof equal to the hire fee plus an additional 50%.
20.12 Post-hire Condition. The Equipment must be returned in the same condition it was in at the start of the Hire Period (except for fair wear and tear) and, where relevant, with at least the same amount of fuel or oil it had at the start of the Hire Period (if applicable). You must promptly repair any Equipment that is broken, damaged, defective or dirty (including concrete, excess mud, grease, chemicals, paint, hazardous or dangerous substances or liquids on or affecting the Equipment) before it is returned to us.
20.13 Periodic Inspection: In addition to our rights set out in clause 2, we may engage a third party to inspect the Equipment on our behalf. You must allow the third party access to the Equipment for the purpose of carrying out the inspection. For the purpose of this clause, the third party is taken to be our agent and covered by the indemnity set out in clause 7.2.
20.14 Inspection on Return of Equipment. We will inspect the Equipment within the Inspection Period to assess its condition, quality and description to ensure all Equipment has been returned and in the same condition (except for fair wear and tear). Within the Inspection Period (including any extended period), we may notify you (orally or in writing) if:
(a) the Equipment is not in the correct condition including issues, damage or defects that were not noted when the Equipment was provided or made available to you; or
(b) not all of the Equipment is returned (e.g. items are missing including keys, remote controls, pumps etc.).
20.15 Extension of Inspection Period: Until all of the Equipment is retuned, we may, without notice, extend the Hire Period and Inspection Period until all Equipment is returned to us and charge you for the total Hire Period and any Loss we suffer or incur as a result.
20.16 Additional charges. In addition to the Quoted amount, we may charge you:
(a) cleaning costs if the Equipment is returned to us dirty;
(b) a daily fee for each day the Equipment is being cleaned, repaired or restored until it is available for re-hire; and
(c) any other amounts outlined in these Terms, the Hire Schedule and/or the Quote relating to the Equipment.
20.17 Recovery. We can exercise our rights under clause 2 at any time if we reasonably believe you have abandoned the Equipment or have breached these Terms. Recovery of the Equipment will not affect our rights or remedied under these Terms or at general law.
20.18 Title. We own and retain title to the Equipment at all times. Nothing in these Terms or otherwise will create an interest in the Equipment in your favour. You must not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let on hire, grant any Security Interest over, or otherwise part with possession or otherwise deal with the Equipment other than as set out in these Terms.
To the extent that you request a turnkey application service, in addition to the ‘GENERAL TERMS’, this ‘TURNKEY APPLICATION TERMS’ section also applies. The ‘TURNKEY APPLICATION TERMS’ will apply to the extent of any inconsistency with the ‘GENERAL TERMS’.
The following definitions apply to this section in addition to the ‘GENERAL TERMS’ definitions.
21.1 Application Area: the total area to which we have agreed to carry out the Turnkey Application pursuant to the accepted Quote or otherwise agreed in writing.
21.2 Application Hours: the hours between Monday to Friday 7:30am to 4:30pm.
21.3 Downtime Fee: $56.25 plus GST per 15 minute increment or part thereof.
21.4 Futile Fee: an amount equal to 25% of the total Price.
21.5 Hose Fee: an additional $0.20 per m2 (plus GST) above the Quoted amount.
21.6 Mobilisation Fee: the costs we incur to mobilise and demobilise daily, including travel to and from the Site, as set out in the Price Schedule or as otherwise provided to you in writing and as calculated according to Zone.
21.7 Personnel Fee: $18.75 plus GST per 15 minute increment or part thereof or as otherwise determined by us in writing.
21.8 Site Water Fee: the reasonable costs incurred if water is not available or suitable and includes water charges, and driving and wait times at fill stations and standpipe locations.
21.9 Stand-down Fee: $18.75 plus GST per 15 minute increment or part thereof for each employee on Site or as otherwise determined by us in writing.
21.10 Turnkey Application: the process of us providing the specific Products and Services to you including applying the Product to the Application Area.
21.11 Zone: the location of the Site which determines the applicable Mobilisation Fee.
22.1 Price. The Price is based on and applies only to:
(a) the Application Area;
(b) the quoted number of layers of Product to be applied to the Application Area;
(c) generic soil type absorption rate;
(d) a single Mobilisation Fee to complete the Turnkey Application; and
(e) the Turnkey Application occurring during the Application Hours,
and any variation to the above will be at an additional cost as outlined in this section.
22.2 Minimum price. We charge a minimum fixed amount being the greater of the following amounts:
(a) the amount stated in the Quote based on the Application Area;
(b) the amount in the Quote based on the fixed price amount in accordance with the Price Schedule; or
(c) the total price for an area of 2,000m2 in accordance with the Price Schedule; or
(d) as otherwise notified to you in writing.
22.3 If we use less Product or the Application Area is smaller than Quoted for, we will invoice you at the applicable unit price per the Price Schedule.
22.4 Minimum notice. We require at least 72 hours’ notice from the time you accept the Quote to book the Turnkey Application. We may alter the timing or date for the Turnkey Application due to actual or anticipated weather conditions, Force Majeure Event, site safety concerns or improper preparation of the Site, and we will not be liable for any Loss you suffer or incur as a result (except where caused by our negligence or default).
22.5 Cancellation. If you wish to cancel the Turnkey Application you must notify us in writing by no later than 10:00am (AEST) on the business day before the date scheduled for the Turnkey Application (Cancellation Period) and provide us the following information:
(a) reason(s) for cancellation;
(b) proposed rescheduled date (if any);
(c) any other information we may reasonably require.
If you cancel any time before or after the Cancellation Period, we can charge you at our discretion, and in addition to the costs in clause 4.1, the Mobilisation Fee, the Futile Fee (if you cancel after we have mobilised) and any other amounts reasonably incurred by us, payable immediately on demand. This amount is payable irrespective of any subsequent Force Majeure event that would have otherwise delayed our delivery of the Products and Services.
23.1 Site inspection. After you accept the Quote for the Turnkey Application we will arrange a complementary Site inspection to assess:
(a) safety of the Site to ensure the Turnkey Application can be completed in compliance with all applicable laws and regulations including WHS;
(b) access to the Site to ensure we can safely and easily access the Site and Application Area;
(c) water access and adequacy to determine whether the supplied water is suitable for the Turnkey Application (acting reasonably) including flow and pressure; and
(d) soil suitability and absorption of the Application Area for the Turnkey Application.
23.2 Site assessment. Following the Site inspection we may decide (acting reasonably):
(a) to vary the Quote (including price) which you can either accept the increase in price or reject in which case we will have no obligation to provide the Turnkey Application to you; or
(b) that the Site is not suitable, safe or accessible for the purpose of carrying out the Turnkey Application and we will either:
(i) delay the Turnkey Application until such time as we deem the Site to be suitable, safe and accessible; or
(ii) refuse to carry out the Turnkey Application and charge the Futile Fee, and
we will not be liable for any Loss incurred or suffered as a result of not carrying out the Turnkey Application in accordance with this clause 23.2 and we may charge you the Futile Fee and any additional costs incurred in accordance with clause 26.
23.3 Variations. You may at any time after accepting the Quote and before completion of the Turnkey Application, request variations to the Turnkey Application in writing or by submitting an amended purchase order to us. Any variation will incur additional costs in accordance with these Terms.
23.4 Application confirmation form. On completion of the Turnkey Application, we will provide you (or your nominated site manager) with an application confirmation form (Confirmation Form) to sign which outlines the final Application Area, total Product applied, time sheet, stand-down times, any variations and any other additional fees and charges payable in accordance with these Terms as set out in clause 26. We will provide you with an invoice based on the Confirmation Form. Once we have completed the Turnkey Application we are not liable or responsible for anything except to the extent caused by our negligence or default in carrying out the Turnkey Application.
24.1 Site preparation. To enable us to safely and properly carry out the Turnkey Application, you must take all reasonable steps to ensure (at your cost):
(a) the Application Area:
(i) is described accurately and easily accessible by us;
(ii) has access to adequate, clean and pressurised water;
(iii) is appropriately prepared for the Turnkey Application in accordance with our reasonable directions;
(b) you have undertaken all necessary safety compliance procedures;
(c) you have carried out ‘before you dig’ checks, inductions and obtained all relevant certificates including a weed and seed certificate;
(d) the Site is approved for any required earthworks to take place;
(e) for water treatment Products, all pre-release jar and bench water testing is carried out on Site water prior to any release to waterways (if applicable); and
(f) you comply with our reasonable directions.
24.2 Representations. You expressly acknowledge and agree that to the fullest extent permitted by law:
(a) we give no guarantee, warranty or undertaking that:
(i) the level of Product dilution is sufficient;
(ii) the quoted quantity of Product will be the same as the total quantity applied in the event that you request an additional quantity of Product be applied, or where we recommend an additional quantity of Product be applied and you accept our recommendation;
(iii) any seed forming part of the Product and Services will grow;
(b) extraneous factors outside our reasonable control can affect the Turnkey Application including contaminated land and water, poor soil quality, ground gradient and/or unviable land, and
to the maximum extent permitted by law, you release and discharge, and indemnify and hold us harmless, from and against all Loss and Claims arising out of or in relation to:
(c) any additional Product applied;
(d) the level of Product dilution; and
(e) the seed growth, including lack of seed growth,
except to the extent caused by our gross negligence or wilful misconduct.
24.3 Warranties. You warrant that:
(a) the water supplied to the Site (including but not limited to the Application Area) is not contaminated;
(b) you will not do anything to cause us to breach environmental laws;
(c) any information regarding the Application Area as stated in the Quote is accurate unless you expressly notify us in writing of the inaccuracy;
(d) you will advise us in writing of the location and buried depth of all utility services in or around the Application Area, and
(e) we are not liable for any services interrupted by or as a result of the Turnkey Application or our machinery,
and to the maximum extent permitted by law, you release and discharge, and indemnify and hold us harmless, from and against all Loss and Claims arising out of or in relation to any of the above.
Custom seed. Any custom seed we provide you as part of the Turnkey Application will be charged in accordance with the Price Schedule or any other written specification we provide to you. If you seek to cancel, amend or change the seed specifications (including a reduction in quantity of seed) after accepting the Quote, you will be liable for the full amount per the Quote.
26.1 Additional charges. You expressly acknowledge and agree in some circumstances where it becomes reasonable and necessary for us to do so we will without notice charge you additional fees not included in the original Quote we provide you, if:
(a) due to inadequate Site water we have to provide external water to the Site to carry out the Turnkey Application we will charge you the Site Water Fee;
(b) due to inadequate Site access, safety issues or other reasons as reasonably determined by us we have to use a hand-held hose for more than 15 minutes to carry out the Turnkey Application, we will charge you the Hose Fee;
(c) we have to stand down, undertake training, or attend inductions and medicals, we will charge the Stand-Down Fee for the period we are unable to carry out the Turnkey Application (except where caused by our negligence or default);
(d) we have to stop work for any reason other than where caused by our negligence or default including due to insufficient personnel or loading equipment at the Site, we will charge the Downtime Fee for the period we are unable to carry out the Turnkey Application;
(e) we have to meet certain site requirements for on-boarding including vehicle wash downs or Equipment modification, we will charge you for our reasonable costs in complying with on-boarding requirements;
(f) you require Site specific Verification of Competencies (VOC) we will charge you for our reasonable costs in obtaining a VOC;
(g) you require weed and seed certification for access to Site we will charge you our reasonable costs in obtaining the certification;
(h) you require us, or we recommend and you accept our recommendation:
(i) to carry out the Turnkey Application to an area greater than the Application Area;
(ii) to apply additional layers of Product to the Application Area,
we will charge you for each additional m2 at the relevant unit price per the Price Schedule;
(i) additional mobilisation other than as stated in the Quote is required to complete the Turnkey Application (other than where caused by our negligence or default) we will charge you the Mobilisation Fee for each additional mobilisation;
(j) we have to bring additional employees on Site to carry out the Turnkey Application which was not contemplated at the time of providing the Quote including due to safety reasons or other reasons as reasonably determined by us we will charge you the Personnel Fee for the period that each additional employee is required on Site;
(k) we have to mobilise more than once as Quoted we will charge the Mobilisation Fee for each mobilisation;
(l) you request, or due to circumstances outside our reasonable control, we carry out the Turnkey Application outside the Application Hours or have to travel a significant distance, we will charge you our reasonable costs which may equal up to 25% of the Quoted price.
Terms and Conditions
Valid as at 21 December 2023
Last Updated as at 21 December 2023
Vital Chemical is committed to the continuous improvement of our business functions to ensure the delivery of best value products and services, whilst contributing toward objectives and outcomes aligning with The United Nations Social Development Goals (UNSDGs). Our Australian made products listed on the Infrastructure Sustainability Council (IS Council) ISupply Directory can support your project’s IS Council accreditation submission across a range of qualifying categories.
