Terms & Conditions
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Authority means any government or a governmental, semi-governmental, administrative, monetary, fiscal or judicial body, entity or authority and any other authority, agency, commission, regulator, ministry, department, instrument, tribunal (including any pricing body), enterprise, delegated authority or similar entity.
Business Day means a week day on which trading banks are open for the transaction of banking business in the State or Territory where the Goods are supplied to Sol Distribution under this Contract.
Contract means the Sales Order and these terms and conditions.
Data means any data or information collected, captured, generated or processed in relation to the Purchaser or in connection with the Goods.
Defect means any defect (including a Goods Safety Defect) or failure of a Good.
Force Majeure means an event beyond the reasonable control of a party including:
- act of nature;
- war or terrorism;
- national emergency;
- epidemic; and
- act or inaction of government or regulatory agency,
which directly affects that party’s ability to perform its obligations arising under this Contract and cannot be mitigated by undertaking reasonable commercial endeavours (provided that the inability to mitigate does not arise due to the relevant party’s failure to take reasonable precautions).
Goods means the hardware, products, equipment or goods which Sol Distribution is to supply to the Purchaser under the Contract and as specified in the Sales Order, including any Variations.
Goods Safety Defect means any characteristic of, or Defect in, the Goods such that:
- Sol Distributionor the Purchaser would contravene a Goods Safety Law if one of them supplied or provided the Goods to any person who is a reasonably foreseeable recipient or user of the Goods or goods of the same type or kind as the Goods; or
- the Goods have a safety defect within the meaning of section 9 of the Australian Consumer Law.
Goods Safety Law means any law relating to the safety of goods or services including, without limitation, the provisions of Part 3-3 of the Australian Consumer Law.
GST means GST imposed by the GST law, applicable from time to time, as that term is defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) or a successor Act.
Intellectual Property Rights means all present and future industrial and intellectual property rights of any kind including but not limited to copyright (including rights in computer software), trade mark, service mark, design, patent, trade secret, semi conductor or circuit layout rights, trade, business, domain or company names, moral rights, rights in Confidential Information, know how or other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
Notices has the meaning given to that term in clause 17.1.
Personal Information means Personal Information as that term is defined in the Privacy Act.
PPS Act means the Personal Property Securities Act 2009 (Cth), and terms used in clause 23 (but not elsewhere in this Contract) which are defined in the PPS Act have the meaning given to them in that legislation.
Price means the price payable for the supply of the Goods set out in the Sales Order, as adjusted in accordance with clause 4.
Privacy Act means the Privacy Act 1988 (Cth), as amended from time to time.
Purchaser means the party to whom a Sales Order is addressed.
Purchaser Background IP means the Intellectual Property Rights in all information and materials of the Purchaser (belonging to the Purchaser or a third party) which is supplied or otherwise made available by the Purchaser to Sol Distribution in the course of performing this Contract and which is either existing prior to the date of this Contract or subsequently brought into existence other than in the course of fulfilling this Contract.
Purchaser Project IP means all Intellectual Property Rights created or developed as part of or in the course of performance of this Contract by the Purchaser, but does not include the Sol Distribution Background IP, Sol Distribution Contract IP or Purchaser Background IP.
Sales Order means a quote, proposal or offer provided by Sol Distribution and accepted by the Purchaser in respect of the Goods.
Reduction Credits means any benefits or credits of any kind which arise or are created under any regulatory regime or licensing requirements including any rights relating to demand side abatement which arise or are capable of being created as a result of the supply of the Goods.
Site means the location or address to which the Goods are to be delivered as specified in the Sales Order (or as otherwise agreed by the Purchaser and Sol Distribution).
Sol Distribution means the AGL group company set out in the Sales Order.
Sol Distribution Background IP means the Intellectual Property Rights in all information and materials Sol Distribution (belonging to Sol Distribution or a third party) which is supplied or otherwise made available by Sol Distribution to the Purchaser in the course of performing this Contract and which is either existing prior to the date of this Contract or subsequently brought into existence other than in the course of fulfilling this Contract.
Sol Distribution Contract IP means Intellectual Property Rights created or developed by or on behalf of Sol Distribution or its personnel as part of or in the course of or in connection with the performance of this Contract and includes all Intellectual Property Rights in the Goods, but does not include the Sol Distribution Background IP or Purchaser Background IP.
Variation means an addition, omission, substitution or change to the scope of, or requirements set out in this Contract for, the Goods. For the avoidance of doubt, a Variation includes the supply by Sol Distribution.
These terms and conditions form part of any Sales Order in which they are referred or to which they are attached.
3. ENTIRE AGREEMENT AND ORDER OF PRECEDENCE
3.1 The Purchaser is taken to have accepted a Sales Order if it notifies Sol Distribution that it accepts the Sales Order by issuing a purchase order (or other similar document) to Sol Distribution or if Sol Distribution delivers the Goods.
3.2 This Contract supersedes all other discussions, representations and arrangements relating to the supply of the Goods and constitutes the entire agreement between Sol Distribution and the Purchaser with respect to the supply of the Goods.
3.3 No variation, modification or alteration of any of the terms of this Contract will be of any effect unless in writing and executed by each of the parties. Nothing contained in any purchase order or other document unilaterally issued by the Purchaser to Sol Distribution will in any way vary, modify, amend or alter the terms and conditions of this Contract.
3.4 In the event of any ambiguity, conflict or inconsistency between the provisions of these terms and conditions and the Sales Order:
- (a) subject to clauses 3.4(b) and 3.4(c), the provisions of these terms and conditions will prevail and govern to the extent of such ambiguity, conflict or inconsistency; and
- (b) to the extent the conflict or inconsistency exists between clauses 4.3 or 4.4 of these terms and conditions and the Sales Order, the Sales Order will prevail and govern to the extent of such conflict or inconsistency; and
- (c) any provisions establishing a higher standard of safety, reliability, durability, performance or service will take precedence over a provision establishing a lower standard of safety, reliability, durability, performance or service.
3.5 Without limiting clause 3.4, the parties agree that it is a principle of these terms and conditions and the Sales Order that if there is any ambiguity in respect of the rights or obligations contained in these terms and conditions and the Sales Order, the rights and obligations in these terms and conditions will be in addition to, and not in substitution for, those contained in the Sales Order.
4.1 If the Sales Order specifies a validity period, then the Sales Oder will lapse after the expiry of that specified period of time. However, Sol Distribution may vary or withdraw a Sales Order at any time in its absolute discretion
4.2 In consideration of Sol Distribution supply of the Goods to the Purchaser, the Purchaser must pay to Sol Distribution the Price and any other charges incurred by the Purchaser by instalments, in accordance with the payment schedule specified in the Sales Order.
4.3 Unless otherwise specified in the Sales Order, Sol Distribution may, in its absolute discretion:
- (a) issue an invoice to the Purchaser for the full Price or part of the Price with the balance of the Price (or part thereof) to be invoiced at a later time or times;
- (b) issue invoices to the Purchaser monthly for the Price and any other charges due under the Contract (either in advance or in arrears); and
- (c) if the Sales Order contains dates for payment, issue invoices to the Purchaser 30 days prior to such dates.
4.4 Unless otherwise specified in the Sales Order, the Purchaser must, within 30 from the date of the tax invoice under this Contract, pay the amount due without deduction or set-off of any kind. The Purchaser must pay interest on each amount that is not paid when due, from (and including) the day on which it falls due to (but excluding) the day on which it is paid in full, at the rate calculated in clause 4.5. This interest must be paid by the Purchaser to Sol Distribution on demand.
4.5 Interest on an unpaid amount accrues each day at a rate equal to the sum of 2 percentage points above the Westpac Banking Corporation corporate overdraft reference rate for that day per annum, and is capitalised (if not paid) every 7 days. This clause does not affect the Purchaser’s obligation to pay each amount under the Contract when it is due.
4.6 If the scope of the Goods supplied Varies from the scope specified in the Sales Order, the Purchaser must pay any reasonable amounts notified or invoiced by Sol Distribution to the Purchaser in relation to the Variation.
4.7 If Sol Distribution can demonstrate that any costs associated with the provision of the Goods (whether labour, equipment, regulatory, manufacturing, supply or other costs) have increased after the date of the Sales Order but before the supply of the Goods (or part thereof), the Purchaser must pay the amount of any such increase to Sol Distribution. Sol Distribution may also pass on any charges another supplier or contractor charges to Sol Distribution (including increases and one-off charges) in relation to performing the Contract.
4.8 If the Purchaser has a bona fide objection to the amount claimed in any tax invoice, it may notify Sol Distribution of the objection and it may refer the matter for resolution under clause 24 (Dispute Resolution) and pay the amount of the tax invoice less the amount in dispute. If it is subsequently agreed between the parties or determined under clause 24 (Dispute Resolution) that payment of some or all of the disputed amount should be made by the Purchaser, Sol Distribution will include that amount in the next tax invoice it issues to the Purchaser following the agreement or determination and the Purchaser must pay that amount within the timeframe specified in clause 4.4.
5. RISK AND TITLE IN THE GOODS
5.1 Subject to clauses 5.2 to 5.4 (inclusive), risk in the Goods will pass to the Purchaser at the time of delivery of the Goods to the Site.
5.2 Notwithstanding clause 5.1, title in the Goods will not pass to the Purchaser until Sol Distribution has received payment of the full Price together with any additional amounts payable under clause 4 and any amounts unpaid or owing by the Purchaser to Sol Distribution. This is so even if the Purchaser has taken possession of the Goods, or has enhanced or changed the Goods or performed work on them.
5.3 Until such time as title in the Goods passes to the Purchaser under clause 5.2, the Purchaser will:
- (a) hold the Goods as fiduciary agent and bailee for Sol Distribution; and
- (b) keep the Goods separate from those of the Purchaser and third parties; and
- (c) properly store, protect and insure the Goods and maintain the labelling and packaging of Sol Distribution so that the Goods are clearly identifiable as Sol Distribution property,
however, failure to comply with these requirements will not affect Sol Distribution’s title in and property to the Goods.
5.4 Without limiting clause 16.2, if the Purchaser fails to pay the Price in accordance with clause 4, Sol Distributionwill be entitled at any time to require the Purchaser to return the Goods to Sol Distribution and, Sol Distribution may, without notice, enter upon any premises of the Purchaser or any third party where Sol Distribution suspects the Goods may be located and remove and repossess the Goods without committing a trespass, notwithstanding that the Goods may have been installed at or attached to other goods, structures or land not the property of Sol Distribution, and for this purpose the Purchaser irrevocably licences Sol Distribution to enter such premises and also indemnifies Sol Distribution from and against all costs, claims, demands or actions by any party arising from such action.
5.5 Sol Distribution and the Purchaser agree that this clause 5 creates relevant, valid and enforceable retention of title by Sol Distribution irrespective of any payment arrangement between Sol Distribution and the Purchaser.
5.6 Sol Distribution may set off against any amount due and payable under this Contract by it to the Purchaser, any amount due and payable under this Contract by the Purchaser to Sol Distribution.
6.1 The Purchaser will be responsible for and bear the cost of any alteration to the Goods supplied by Sol Distribution arising from any discrepancy, error or omission in any drawing, specification or other document or information supplied by, or on behalf of, or approved by the Purchaser.
6.1 The Purchaser warrants that it has made its own enquiries about the nature of the Goods and the suitability of the Goods for any use or purpose, and has not relied on any representation by Sol Distribution in relation to these matters, unless otherwise expressly and specifically stated by Sol Distribution in the Sales Order.
7. ORDERING POLICY
7.1 Orders may be placed:
- (a) through Sol Distribution’s website using Sol Distribution’s secure payment options (where available); or
- (b) by phoning or emailing the Sol Distribution sales team.
7.2 All orders will be confirmed to the Purchaser using Sol Distribution’s sales order document. A sales order is a commitment to buy by the Purchaser.
7.3 Sol Distribution reserves the right to cancel an order. Should Sol Distribution be unable to process an order for any reason whatsoever, Sol Distribution will contact the Purchaser within 48hours of the order being placed. Where payment has been processed a full credit will be issued to the account within 24 hours.
8. SHIPMENT POLICY
8.1 Sol Distribution will aim to ship Goods within 1 Business Day of payment being received.
8.2 Shipping prices will be identified on orders as “Shipping” at the base of a transaction document. Shipment of Goods will be organised by Sol Distribution’s sales team using one of our logistics partners.
8.3 The Purchaser may use their own logisitcs company by arrangement in consultation with Sol Distribution’s sales team.
8.4 The Purchaser may collect the Goods Sol Distribution’s distribution centre during business hours
9. SHORT SHIPMENT POLICY
9.1 Each order will be packed with a packing slip which will contain information about product specifications, quantities ordered and quantities shipped. Where relevant, serial numbers will also be recorded on the packing slip.
9.2 Should the Purchaser receive Goods which do not match the quantity in the SHIPPED column, the Purchaser must inform Sol Distribution’s sales team in writing within 48 hours of receiving the Goods.
10. FREIGHT DAMAGE
10.1 Upon receipt of Goods, it is the Purchaser’s responsibility to check the Goods have not been damaged in transit. Any damage must be reported immediately to Sol Distribution’s sales team. All other Goods shall be deemed accepted by the Purchaser upon delivery.
10.2 The Purchaser must email photographs and a detailed description (including product serial numbers) of the the damaged Goods.. Any claim for freight damage must be in writing within 5 Business Days of the Customer receiving the Goods.
10.3 In circumstances where the Purchaser arranges freight, the responsibility to insure the Goods in transit is born by the Purchaser. In such circumstances Sol Distribution’s liability ceases upon the shipment being signed for by the Purchaser’s logistics company.
11.1 Subject to clause 11.3, Sol Distribution must deliver the Goods to the Site in accordance with this Contract.
11.2 After risk and title in the Goods passes to the Purchaser in accordance with clause 5, the Purchaser may supply the Goods to third parties, subject to the terms and conditions of this Contract.
11.3 The Purchaser must ensure that Sol Distribution (and its authorised agents or contractors) has access to the Site (and the Goods once installed at any other premises) as reasonably required to deliver the Goods and to inspect, test, operate, maintain, report on or remove the Goods, or for any other purpose reasonably related to the supply of the Goods.
11.4 Sol Distribution will not be liable for any failure to supply the Goods by or on any particular date or time (including any date or time specified in the Sales Order).
12. RETURNS POLICY
12.1 If any product the Purchaser purchases from Sol Distribution is faulty or damaged (through no fault of the Purchaser) Sol Distribution will, at is discretion, exchange it or credit the purchase back to the Purchaser’s account.
12.2 It is the Purchaser’s responsibility to arrange and pay for Goods to be returned to the distribution centre. Goods returned to the distribution centre need to be in “as new” condition. Any Goods returned which have previously been opened will not be accepted.
12.3 When returning Goods, the Customer must ensure it is returned in its original packaging with all ancillary components and manuals included. Good not returned in this state may incur a 15% processing fee (based on the sale price).
12.4 Returns due to Purchaser error or change in mind will incur a 10% restocking fee. Returns will only be accepted within 14 days of shipment.
13.1 All cost of freight and delivery of the Goods at the agreed delivery address shall be borne by the Purchaser, unless otherwise agreed.
13.2 If the Purchaser is unable or fails to accept delivery of the Goods, the Purchaser will be liable for all costs incurred by Sol Distribution due to storage, detention, double cartage, travel expenses or similar causes.
13.3 All risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to the Purchaser immediately upon delivery of the Goods to the Purchaser.
13.4 Except as specifically set out herein, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
13.5 Sol Distribution will not be liable for any loss or damage suffered by the Purchaser where Sol Distribution has failed to meet any delivery date or cancels or suspends the supply of Goods.
14. SOFTWARE AS A SERVICE
14.1 If the Goods supplied to the Purchaser includes the provision of software as a service for use, you acknowledge and agree that the software as a service is managed by the manufacturer or supplier (or any contractor thereof) and not by Sol Distribution.
15. DESIGN SERVICES
15.1 Sol Distribution may provide design Services for Purchaser who regularly purchase product and require additional support. The design Services are only provided for products supplied by Sol Distribution for Purchaser who intend to purchase Goods. To initiate any design Services a 10% deposit must be received on an order. design Services are provided for information only and all design work shall be checked by a suitably accredited Clean Energy Council designer engaged by the Customer. Design Services remain the property of Sol Distribution and are intended for the guidance of installers only. Design Services shall not be reproduced without written authorisation from Sol Distribution.
16. PRODUCT MANUAL AND TRAINING
16.1 Information on any product manual, specific training and instructional materials will be as per the third party manufacturer or supplier’s website or contained in the Goods packaging., unless otherwise notified to the Purchaser by Sol Distribution from time to time.
16.2 The parties acknowledge and agree that the product manual, training and instructional materials are the responsibility of the third party manufacturer and third party supplier of the Goods, and Sol Distribution has no liability to the Purchaser or any third party for any loss or damage arising from, or in connection with, any product manual, training or instructional materials (or lack thereof) in respect of the Goods.
17.1 The Purchaser acknowledges that a third party has manufactured and supplied the Goods to Sol Distribution
17.2 If The Goods are covered by the third party manufacturer’s or supplier’s standard warranty which are available on the third party manufacturer’s or supplier’s website or contained in the Goods packaging. Sol Distribution will use reasonable endeavours to assign to the Purchaser any third party manufacturer’s or supplier’s standard warranty. If any such third party warranty is assigned to the Purchaser by Sol Distribution, the conditions of the warranty apply strictly as between the third party and the Purchaser.
17.3 The Purchaser must immediately notify Sol Distribution if the Purchaser:
- (a) is contacted by an Authority in connection with credible allegations or concerns;
- (b) receives a credible complaint from any person other than Sol Distribution; or
- (c) otherwise becomes aware or suspects, other than by way of a notification by Sol Distribution,
that any of the Goods, or goods supplied by Sol Distribution of the same type or kind as the Goods, have or may have any Defect. Without limiting clause 18.1, the Purchaser must comply with any directions Sol Distribution, acting reasonably, provides it in response to such notification.
17.4 To the extent permitted by law, Sol Distribution excludes all terms, guarantees and warranties not expressed in this Contract and will not be liable for any claims made by the Purchaser other than in accordance with this clause 17 for any Defects or problems identified during or after any warranty period.
17.5 Nothing in this clause 17 or clause 20 operates to exclude, restrict or modify the application of any implied condition or consumer guarantee, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law (set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) as amended or replaced from time to time) or any other statute where to do so would:
- (a) contravene that statute; or
- (b) cause any term of this Contract to be void.
17.6 The Purchaser agrees to make all necessary enquiries, examinations and inspections and to take all necessary precautions for the safe collection, and safe and proper subsequent use of the Goods by the Purchaser or any other person, and the Purchaser must ensure that Sol Distribution has sufficient and accurate information during manufacturing and the supply of the Goods to select suitable capacitors, reactors, kVAR/VAR compensators, arrestor and protection equipment and any other parts or components (as applicable).
18. ASSISTANCE WITH GOODS SAFETY INCIDENTS
18.1 If the Purchaser gives a notice under clause 17.3 or Sol Distribution otherwise notifies the Purchaser of a matter described in clause 17.3, the Purchaser must:
- (a) provide Sol Distribution or the third party supplier or manufacturer of the Goods with any assistance and information reasonably requested by Sol Distribution in connection with the actual or potential Goods Safety Defect, including without limitation assistance or information:
- (i) to promptly investigate the matters raised in the notice to identify the existence, nature and cause of any Goods Safety Defect;
- (ii) concerning the status and outcome of the Purchaser’s investigations under clause 18.1(a)(i);
- (iii) to enable Sol Distribution to contact any third party supplier, manufacturer or users of the Goods;
- (iv) to enable Sol Distribution to recall or decide whether to recall the Goods, or to direct the Purchaser to recall the Goods (including as part of any recall process under Part 3-3 of the Australian Consumer Law);
- (v) if directed by Sol Distribution, to recall the Goods in accordance with any reasonable instructions given by Sol Distribution (including as part of any recall process under Part 3-3 of the Australian Consumer Law); and
- (vi) to enable Sol Distribution to communicate with Authorities, including as part of notifying a Authority or responding to information requests.
- (b) provide Sol Distribution with copies of any public statement which the Purchaser proposes to make in relation to the Goods Safety Defect, so as to allow Sol Distribution a reasonable opportunity to comment on the statement prior to its publication or release.
19. DEFECTS AND GOODS RECALL
19.1 The Purchaser must provide Sol Distribution or the third party supplier or manufacturer of the Goods with any assistance and information reasonably directed by Sol Distribution to rectify, recall, replace (including with a different Goods) or otherwise deal with as directed (as applicable) any Goods which have a Defect or have been recalled by an Authority, manufacturer, distributor, supplier or similar.
19.2 Where Sol Distribution provides a written direction to the Purchaser under clause 19.1, the Purchaser must comply with the direction:
- (a) by a reasonable date specified by Sol Distribution or, if Sol Distribution has not specified a date, within a reasonable time;
- (b) in accordance with all instructions provided by Sol Distribution (acting reasonably) in its direction; and
- (c) at times permitted by Sol Distribution (acting reasonably) and in a manner which causes as little inconvenience to operations and others on and near the Site as is reasonably possible.
20.1 The Purchaser releases to the fullest extent permitted by law and indemnifies Sol Distribution and its officers, employees, contractors and agents from and against all actions, claims, loss, expense and demands made against Sol Distribution and its officers, employees, contractors and agents in connection with any damage to or loss of property, personal injury or death caused by or attributable to any act or omission of the Purchaser, except to the extent that such damage to or loss of property, personal injury or death was caused by a negligent act or wilful default of Sol Distribution or its officers, employees, contractors and agents.
20.2 Notwithstanding anything else expressed or implied in this Contract, to the extent permitted by law Sol Distribution will not be liable to the Purchaser or any third party for any:
- (a) loss of production, power, use or business;
- (b) costs of capital or cost of replacement power;
- (c) loss of profit or the opportunity to earn profit;
- (d) claim of infringement of any Intellectual Property Rights howsoever arising in respect of the Goods;
- (e) loss of data or use of data;
- (f) loss of good will or damage to reputation; or
- (g) other special, indirect or consequential loss or damage, however arising, including as a result of negligence on the part of Sol Distribution or its employees, agents and contractors.
20.3 Notwithstanding anything else expressed or implied in this Contract, to the extent permitted by law Sol Distribution’s maximum aggregate liability to the Purchaser arising out of or in connection with this Contract (however arising, including for negligence) is limited to the aggregate of the Price paid under this Contract.
20.4 The parties agree that, to the extent permitted by law, Sol Distribution will not be liable to the Purchaser or any third party for:
- (a) any failure of the Goods to obtain or meet any performance figures, tolerances or characteristics of the Goods (whether attributable to Sol Distribution’s negligence or otherwise) and the third party manufacturer or supplier is responsible for any express or implied warranties regarding such figures, tolerances or characteristics; or
- (b) any loss or damage arising from, or in connection with, any software as a service or any other software relating to the Goods, any installation services or other services relating to the Goods, including any issues with integration and customisation, Data defects or breaches, service availability, interruptions, or resolution times.
20.5 If a claim is made by a third party in connection with the Goods that involves Sol Distribution or its Related Bodies Corporate, the Purchaser must provide reasonable assistance and co-operation to Sol Distribution in connection with the claim.
21. COMMONWEALTH AND STATE LEGISLATION
21.1 Sol Distribution and the Purchaser will comply with the requirements of all applicable Commonwealth and State legislation (including without limitation all relevant environmental and occupational health and safety legislation) and will comply with the requirements of any authority having jurisdiction over or in respect of the Goods
21.2 The Purchaser will give all notices and obtain all approvals, consents and licences required to be given or obtained under such laws, and will pay all fees and bear all costs connected with such notices, approvals, consents and licences.
22. FORCE MAJEURE
Sol Distribution’s obligations under this Contract are suspended where an event of Force Majeure prevents or delays their performance.
23.1 If the Purchaser:
- (a) is in breach of this Contract; or
- (b) has become insolvent or bankrupt or has had an administrator, receiver or liquidator appointed,
- then Sol Distribution may:
- (c) immediately terminate this Contract (including any Sales Order) by giving written notice to the Purchaser; and
- (d) take steps to recover Goods which are in the possession of the Customer.
23.2 Where this Contract is terminated in accordance with this clause 23, the Purchaser must promptly:
- (a) pay Sol Distribution the Price in respect of Goods supplied prior to the date of termination;
- (b) pay Sol Distribution any other amounts payable or costs or expenses incurred by Sol Distribution under or in connection with this Contract; and
- (c) to the extent the Purchaser has not paid the Price, return the Goods or any part thereof.
23.3 Nothing in this clause 16 nor the exercise by Sol Distribution of any rights under this clause will in any way limit any right to damages or other remedies Sol Distribution may have with respect to this Contract.
23.4 Clauses 1, 5, 11.4, 12, 17.3, 18.1, 20, 23, 24, 25, 26, 27, 28, 30, 31, 32, 33 and 34 and any other obligations which are expressed to, or by their nature, survive expiry or termination of this Contract, survive expiry or termination of this Contract.
24.1 A notice demand, consent, request or other communication (a Notice) given or made under this Contract:
- (a) must be in writing and signed by a person duly authorised by the sender; and
- (b) must be delivered to the intended recipient by hand or by prepaid post (if posted to an address in another country, by registered airmail) or email to the email address set out in the Sales Order, or address last notified by the intended recipient to the sender.
24.2 A Notice will be taken to be duly given or made:
- (a) in the case of delivery in person, when delivered;
- (b) in the case of delivery by post, seven Business Days after the date of posting (if posted to an address in the same country) or ten Business Days after the date of posting (if posted to an address in another country); and
- (c) in the case of delivery by email, on the first to occur of:
- (i) receipt by the sender of an email acknowledgement from the recipient’s information system showing that the Notice has been delivered to the email address stated above;
- (ii) the time that the Notice enters an information system which is under the control of the recipient; and
- (iii) the time that the Notice is first opened or read by the recipient,
but if the result is that a Notice would be taken to be given or made on a day that is not a business day in the place to which the Notice is sent or is later than 4.00pm (local time) it will be taken to have been duly given or made at the commencement of business on the next business day in that place.
25.1 All amounts payable or the value of other consideration provided in respect of supplies made in relation to this Contract are exclusive of GST (if any). If a GST is levied or imposed on any supply made (or deemed to have been made) under or in accordance with this Contract, the amounts payable or the value of the consideration provided for that supply (or deemed supply) must be increased by the amount of GST payable in relation to the supply.
25.2 Where any amount is payable to a party as a reimbursement, indemnification or similar payment calculated by reference to a loss, cost, expense or other amount incurred, then such amount will be reduced by the amount of any input tax credit available to that party and, if a taxable supply, will be increased by the GST payable in relation to that supply.
25.3 All GST payable will be payable at the time any payment to which it relates is payable. Where any GST payable is not referable to an actual payment then it will be payable within 10 days of a tax invoice being issued by the party making the supply.
25.4 Where in relation to this Contract a party makes a taxable supply, that party will provide a tax invoice in respect of that supply before the GST payable in respect of that supply becomes due.
26.1 The parties acknowledge that the information contained in this Contract and all data and information acquired or received by a party during or in connection with the negotiation or performance of this Contract is confidential and must not be disclosed to any third party without the prior written consent of the other party
26.2 Clause 26.1 does not apply to confidential information required to be disclosed by law or pursuant to stock exchange listing rules or disclosed to legal advisers, auditors, agents or employees of each party or its related bodies corporate in connection with this Contract.
27.1 The Purchaser authorises Sol Distribution to collect, use, disclose and store the Purchaser’s Personal Information for the purpose of providing the Purchaser with the Goods.
27.3 Sol Distribution may exchange Data, including Personal Information, with third party providers, which include the manufacturers or suppliers of any Goods and who are located in Australia, the USA and other countries. Where Sol Distribution does this, the Purchaser agrees that in the event of a privacy breach relating to Personal Information by an overseas recipient, Sol Distribution will not be accountable for that recipient under the Privacy Act and the Purchaser may not be able to seek redress under the Privacy Act.
27.4 The Purchaser agrees that Sol Distribution’s third party providers may collect, store, use and disclose Data, including Personal Information, about the Purchaser:
- (a) as described in their privacy policies or statements;
- (b) to provide Goods to the Purchaser and to Sol Distribution;
- (c) to communicate product information for safety, maintenance and product improvement purposes to the Purchaser; and
- (d) to maintain, improve and enhance their Goods
27.5 Each party will promptly do and perform all further acts and execute and deliver all further documents required by law or reasonably requested by any other party to give effect to this clause 27.
28. INTELLECTUAL PROPERTY
28.1 The Purchaser acknowledges that Sol Distribution retains ownership of all Sol Distribution Background IP.
28.2 Sol Distribution acknowledges that the Purchaser retains ownership of all Purchaser Background IP.
28.3 All Sol Distribution Contract IP will be owned absolutely by Sol Distribution and vests in Sol Distribution immediately on creation.
28.4 All Purchaser Project IP will be owned absolutely by the Purchaser and vests in the Purchaser immediately on creation
28.5 The Purchaser grants Sol Distribution a perpetual, irrevocable, worldwide, non–exclusive, transferable, sub-licensable, royalty free licence to use, reproduce, adapt, distribute on-sell and communicate under the Purchaser Background IP and the Purchaser Project IP for any purpose required by Sol Distribution (including an internal business purpose of Sol Distribution or its Related Body Corporate), or to do any thing necessary and convenient in order for Sol Distribution to perform or exercise its rights under this Contract.
28.6 Sol Distribution grants the Purchaser a revocable, non– exclusive, non-transferable, non-sub-licensable, royalty-free licence to use Sol Distribution Background IP and Sol Distribution Contract IP solely to the extent necessary to enable the Purchaser to use the Goods, perform or exercise its rights under this Contract or to otherwise enjoy the benefit of this Contract (and for no other prupose, project of person).
28.7 Sol Distribution will have no liability whatsoever in the event of any claim of infringement of any Intellectual Property Rights howsoever arising in respect of the Goods.
28.8 Any information (including design, software or drawings) supplied by Sol Distribution or any of its employees, agents or contractors to the Purchaser will be treated as confidential information and will not be disclose to any other person unless Sol Distribution consents in writing to such disclosure.
29.1 If requested by Sol Distribution, the Purchaser must provide reasonable assistance to Sol Distribution to enable Sol Distribution to make a claim under any relevant Sol Distribution insurance policy.
30. PERSONAL PROPERTY SECURITIES LAW
30.1 The Purchaser acknowledges that clause 5 creates a security interest in the Goods in favour of Sol Distribution.
30.2 This Contract constitutes a security agreement for the purposes of the PPS Act.
30.3 The Purchaser must do anything reasonably required by Sol Distribution to enable Sol Distribution to register its security interest, with the best priority available to Sol Distribution, and to maintain the registration.
30.4 The security interests granted to Sol Distribution under this Contract attach to the Goods not later than the time the Purchaser obtains possession of the Goods.
30.5 The parties confirm that they have not agreed that any security interest created in favour of Sol Distribution under this Contract attaches at any later time.
30.6 The Purchaser acknowledges that Sol Distribution may perfect its security interests by lodging one or more financing statements on the Personal Property Securities Register established under the PPS Act.
30.7 All of the enforcement provisions of Chapter 4 of the PPS Act apply to all of the security interests created by this Contract, except as excluded by clause 30.8.
30.8 To extend the law permits:
- (a) for the purposes of sections 115(1) and 115(7) of the PPS Act:
- (i) Sol Distribution need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d) or 132(4) of the PPS Act; and
- (ii) sections 142 and 143 are excluded;
- (b) for the purposes of section 115(7) of the PPS Act, Sol Distribution need not comply with sections 132 and 137(3) of the PPS Act.
30.9 Sol Distribution does not need to give the Purchaser any notice under the PPS Act (including a notice of a Verification Statement, as defined in the PPS Act) unless the notice is required by the PPS Act and that requirement cannot be excluded.
30.10 Each party must not disclose to an “interested person” (as defined in section 275(9) of the PPS Act) or any other person, any information of the kind described in section 275(1) of the PPS Act except at required by law. The Purchaser must not authorise the disclosure of any information of the kind described in section 275(1) of the PPS Act.
30.11 This clause does not limit what other amounts are secured under this Contract.
31. DISPUTE RESOLUTION
31.1 In the event of any dispute between the parties under or in connection with this Contract, except where a party seeks urgent interlocutory relief, the parties will:
- (a) within seven days (or such other period agreed between the parties) of a party providing notice of a dispute to the other party, ensure that a senior representative of each party meet with a view to resolving the dispute; then
- (b) if the dispute is not resolved, within seven days (or such other period agreed between the parties) of that meeting, senior representatives of the parties will meet with a view to resolving the dispute; then
- (c) if dispute remains unresolved within 21 days (or such other period agreed between the parties) of provision of the notice of dispute or within seven days (or such other period agreed between the parties) of the date of the last meeting under clause 31.1(b), whichever is the earlier, then the parties will refer the dispute to mediation to be conducted by the Australian Disputes Centre in accordance with its then current mediation rules and guidelines for resolution within 10 days (or such other period agreed between the parties); then
- (d) if the dispute remains unresolved at the expiry of the 10 day mediation period referred to in clause 31.1(c) (or such other period agreed between the parties), either party may apply to a court of competent jurisdiction to seek urgent relief or initiate any legal process.
31.2 If a dispute is referred to mediation or arbitration:
- (a) any meetings organised will be held at Sol Distribution’s offices or such other place as may be agreed by the parties;
- (b) the parties agree to pay costs as directed by the mediator or arbitrator, as applicable; and
- (c) both parties may be represented by a duly qualified legal practitioner.
31.3 Despite the existence of a dispute, each party must continue to perform its obligations under this Contract.
The failure of any party to enforce any provision of this Contract or exercise any rights expressed in this Contract, will not be a waiver of such provisions or rights and will not affect the enforcement of this Contract, unless the waiver is in writing and signed by the party granting the waiver.
33. NO ASSIGMENT
The Purchaser will not assign its rights or obligations under this Contract without the prior written consent of Sol Distribution.
34. GOVERNING LAW
This Contract will be governed by and construed in accordance with the laws of the State of New South Wales, Australia, unless otherwise specified in the Sales Order. Each party to this Contract submits to the non-exclusive jurisdiction of the courts of that State or Territory.
35. TRUSTEE PROVISIONS
35.1 Application of clause
If the Purchaser enters into this Contract in its capacity as a trustee of a trust, this clause (35) applies
35.2 Representations and warrants
The Purchaser represents, warrants and undertakes to Sol Distribution that:
- (a) the Purchaser enters into this Contract and each Sales Order as part of the proper administration of the trust created by the applicable trust deed for the purposes and benefit of the trust and the relevant beneficiaries of the trust;
- (b) the consents or approvals of all parties necessary to execute this Contract and each Sales Order so as to bind the property of the trust have been obtained and all necessary conditions precedent for that purpose have been met;
- (c) the Purchaser is bound both personally and in its capacity as a trustee;
- (d) as trustee the Purchaser has power under the trust deed to enter into and execute this Contract and each Sales Order, to be or become indebted to us and to enter into all other obligations in the manner and to the extent contemplated by this Contract, and to apply the assets of the trust under the trust deed in satisfaction of this Contract and any money payable under this Contract from time to time;
- (e) the Purchaser is not in breach of the applicable trust deed;
- (f) all acts of internal management of the trust in connection with this Contract and the assumption by the trustee of liability for the performance of its obligations in connection with this Contract have been duly performed and all consents, authorisations and approvals required are in full force and effect
- (g) the applicable trust deed constitutes legal, valid and binding obligations enforceable in accordance with its terms and neither the applicable trust deed nor any part of it is void, voidable or otherwise unenforceable;
- (h) the Purchaser is the sole trustee and legal owner of the trust property of the relevant trust, and it will be the sole trustee and legal owner of any property it acquires as trust property for the relevant trust;
- (i) the Purchaser is not a trustee of any other trust nor a party to any partnership, joint venture or any profit sharing or like arrangement with any other person or corporation other than as notified to Sol Distribution in writing before the Purchaser, in its capacity as trustee of the trust, executes this Contract;
- (j) no order has been made relating to the relevant trust by any governmental agency which detrimentally affects any trust property of the relevant trust or which appoints a receiver;
- (k) no direction has been given by the relevant beneficiaries for the winding up or termination of the relevant trust or distribution of the trust property of the relevant trust; and
- (l) no direction or notice has been given removing the Purchaser as trustee of the relevant trust, revoking or varying the Trust Deed, or appointing additional trustees to the relevant trust.
The Purchaser acknowledges and accepts that in relation to each warranty and representation made in this clause, Sol Distribution relied on each warranty and representation in entering into this Contract with the Purchaser.
The Purchaser, in its capacity as trustee of the relevant trust:
- (a) agrees that the assets of the relevant trust and also those beneficially held by the Purchaser as trustee on its own behalf will be available to satisfy its obligations as trustee under this Contract; and
- (b) agrees that Sol Distribution may have recourse to any property or funds of the Purchaser as the trustee in any order without any obligation to marshal assets or securities, and Sol Distribution need not first seek recovery against the relevant trust assets.