TERMS AND CONDITIONS OF SALE
“Business Day” means any week day on which banks are generally open for business in Sydney, New South Wales.
“Buyer” means the person, entity or organisation that Orders Goods from the Seller or to which Goods are delivered by the Seller and includes the Buyer’s agents.
“Conditions” means these Terms and Conditions of Sale between the Buyer and the Seller as set out in this document.
“Consumer Law” means the Competition and Consumer Act 2010 (Cth) or the New Zealand Consumer Guarantees Act 1993 (as applicable) as amended from time to time.
“Contract” means these Conditions, the conditions contained in any credit application made by the Buyer to the Seller, any conditions imposed by the Seller as conditions on which credit is granted, and any conditions contained on invoices issued by the Seller to the Buyer.
“Corporations Act” means the Corporations Act 2001 (Cth) or the New Zealand Companies Act 1993 (as applicable) as amended from time to time.
“Delivery Fees” means the delivery fee schedule provided by the Seller to the Buyer from time to time.
“Goods” means the goods supplied by the Seller to the Buyer from time to time.
“GST” has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 or the New Zealand Goods and Services Tax Act 1985 (as applicable) as amended from time to time.
“Insolvency Event” has the meaning given in clause 11(a).
“Intellectual Property Rights” includes rights in relation to present and future copyright, confidential information, patents, inventions, registered and unregistered trademarks and registered or unregistered designs and includes any right to licence and sub-licence any of the above.
“Order” means an order placed by the Buyer (including by phone or in writing) requesting the Seller to supply the Goods.
“PPSA” means the Personal Property Securities Act 2009 (Cth) or the New Zealand Personal Property Securities Act 1999 (as applicable) as amended from time to time.
“Price” means the moneys payable by the Buyer to the Seller in relation to the supply of Goods.
“PMSI” has the meaning given to it in the PPSA.
“Security Interest” includes any security interest under the PPSA.
“Seller” means Jet Technologies Australia Pty Ltd (ACN
056 878 552) as trustee for the J O T Trust or any
Related Body Corporate as defined by the Corporations Act.
“Specifications” means the written specifications for the Goods provided by the Seller to the Buyer from time to time.
Orders for Goods placed by the Buyer are subject to these Conditions. The Contract constitutes the whole agreement between the Seller and the Buyer. No term or condition contained in any Order will add to, amend or delete these Conditions unless expressly pre-agreed in writing by a duly authorised officer of the Seller.
The Buyer agrees that in placing any Order with the Seller and by accepting delivery in whole or in part of any Goods after being provided with a copy of these Conditions, the Buyer has agreed to these Conditions whether or not the Buyer has signed a copy of these Conditions.
The Buyer acknowledges and agrees that the Seller has made the Specifications available to the Buyer before the Buyer has placed its Order. The Buyer acknowledges and agrees that it is the Buyer’s responsibility when Ordering the Goods to satisfy itself (by carefully considering the Specifications) that the Goods Ordered conform to the Buyer’s requirements and are suitable and sufficient for the Buyer’s purpose.
The Buyer acknowledges and agrees that:
it understands the way it intends to use the Goods;
it understands the purpose for which it intends to use the Goods;
where a sample is reasonably available it has tested a sample of the Goods or it has previously used the Goods;
it is satisfied, based on:
subject to clause 2(d)(iii) the Buyer’s own tests; and/or
the Buyer’s own enquiries,
that the Goods will be fit for the purpose the Buyer intends; and
it has brought to the Seller’s attention any special characteristics or properties the Goods must have before the Goods were tested and Ordered.
If the parties have not agreed in writing before the Order is placed that the Goods are fit for the particular purpose the Buyer intends to use them for, the Buyer acknowledges and agrees that:
it has not relied on the Seller’s skill and judgement when selecting the Goods;
the Goods have all of the characteristics the Buyer requires; and
it will not use, on-sell or promote the Goods as having any characteristics outside those in the Specifications provided by the Seller.
The Seller reserves the right to:
not accept the return of, or give credit for, any Goods it supplies to the Buyer; or
accept the return of Goods it has supplied to the Buyer on terms and conditions satisfactory to the Seller as determined by the Seller in its absolute discretion,
if the Buyer causes or contributes to any damage to the Goods.
The Seller’s receipt of an Order does not constitute acceptance of the Order by the Seller. The Order is deemed accepted on the earlier of:
delivery of the Goods; or the date the Seller notifies the Buyer that it has accepted the Order.
All descriptions, performance figures, drawings, data, dimensions and weights furnished by the Seller or contained in catalogues, price lists or advertisements provide only a general description of the Goods and shall not form part of these Conditions. These general descriptions are not Specifications. The Buyer may use the Specifications to satisfy itself that the Goods conform to the Buyer’s requirements and are suitable for the Buyer’s purpose.
The Buyer must provide all information necessary to enable the completion of each Order. The Buyer acknowledges and agrees that it must pay any costs arising directly or indirectly from any error or omission in that information or any delay in providing that information.
If there is any inconsistency between the Contract and any applicable consignment terms and conditions, the order of precedence will be: the Contract; then the applicable consignment terms and conditions, to the extent of any inconsistency.
3 SUPPLY OF GOODS
Subject to these Conditions, the Seller agrees to supply the Goods to the Buyer;
the Buyer agrees to pay for the Goods in accordance with these Conditions; and
the Goods and any related services are to be supplied and acquired in trade and if supplied in New Zealand the parties agree, to the maximum extent possible, that the Consumer Law does not apply.
The Seller will advise the Buyer of the Price from time to time by providing the Buyer with a: quote for specific Goods; or price list for the Goods.
Any quotation provided by the Seller is not and shall not be construed as an offer capable of acceptance or as creating an obligation to sell.
Any Price quoted by the Seller is based on the full quantities specified and does not necessarily operate pro-rata for any greater or lesser quantities.
Any Price quoted is subject to the terms contained in the quotation.
Unless otherwise indicated, prices quoted are exclusive of GST. The Buyer is required to pay all GST in respect of the Goods or any part of the Goods at the same time that payment is required.
The Buyer acknowledges and agrees to pay the Seller on demand all costs and losses incurred by the Seller if the Buyer, for any reason, is unable or unwilling to accept the Goods after the date the Order is accepted by the Seller.
5 TERMS OF PAYMENT
The Buyer agrees to pay the Seller:
for all Goods provided by the Seller to the Buyer;
the Delivery Fees; and
any applicable GST or other charges, duties and taxes set out in the Contract or otherwise invoiced by the Seller.
The Seller may, in its discretion, vary the Delivery Fees from time to time by giving the Buyer notice in writing.
All amounts are due and payable within 30 days from the end of the month of invoice (unless otherwise specified) by way of eftpos payment, valid cheque or credit card.
The Seller may require a deposit on an Order. If the Seller requires the Buyer to pay a deposit:
the Buyer must pay the deposit by way of eftpos payment, valid cheque or credit card; and
the deposit paid by the Buyer (if any) will be deducted from the amount payable by the Buyer under the Contract.
In the event that payment is not received according to the Contract this will constitute a default under the Contract, and:
all money owed by the Buyer to the Seller will become immediately due and payable from the Buyer to the Seller;
the Seller may charge the Buyer interest on overdue amounts. Interest will be calculated on daily balances of overdue accounts from the day following the date upon which payment should have been made at the Cash Rate Target plus 10%; and
the Buyer agrees that the Seller is not required to demand payment of outstanding invoices before the Buyer’s liability to the Seller to remit interest is incurred.
If the Buyer wants to Order any Goods on consignment, the Buyer acknowledges and agrees that it must also sign any applicable consignment terms and conditions of the Seller.
In the event of a default by the Buyer under the Contract, the Buyer agrees to indemnify the Seller for all costs that the Seller may incur in connection with the default, including:
any reasonable legal costs (on a solicitor/client basis) that the Seller may become liable for;
the reasonable costs, including their commission; of any mercantile agent or collection agency that the Seller may choose to engage; and
any other disbursements that the Seller may reasonably become liable for.
The Buyer may not by reason of any set off, counterclaim, abatement, claim or analogous deduction withhold payment of any amount due and owing to the Seller for the Goods.
The Buyer agrees that any time that it makes a payment to the Seller, irrespective of whether the payment is made under or in connection with the Contract, that the Seller may apply that payment in any manner that the Seller sees fit.
6 RETENTION OF TITLE, DELIVERY, RISK AND PROPERTY
Unless otherwise agreed in writing, the Goods shall be delivered to the Buyer at the store of the Buyer notified by the Buyer to the Seller.
The Seller is not obliged to deliver the ordered Goods in one instalment and may elect to deliver the Goods in any number of instalments.
Unless otherwise stated in a delivery docket or packing slip, risk of loss of or damage to the Goods passes to the Buyer:
when the Goods pass the entrance of the Buyer’s store or works;
when the Goods pass the entrance of the Buyer’s pre-arranged address for delivery; or
if the Goods are being delivered to the Buyer using a carrier, when the Goods are delivered to the carrier,
and the Seller will not be liable to the Buyer for any loss in relation to the Goods upon that delivery unless the Buyer notifies the Seller within 24 hours of delivery of the damage, fault or loss of the Goods.
The Buyer will, at the Buyer’s expense, provide labour, cranes or forklifts and reasonable access to the nominated point of delivery for the prompt offloading of Goods.
If the Seller agrees to deliver the Goods to the premises of the Buyer and if the Seller contracts with a carrier to do so, delivery of the Goods to the carrier in all circumstances constitutes delivery to the Buyer.
Ownership in Goods supplied by the Seller remains with the Seller until the Seller receives payment in full of the
Price for the Goods and all other sums whatsoever due to the Seller. Pending such payment the following conditions apply to the Goods:
the Buyer must designate and keep the Seller’s Goods in such a way as to indicate that the Goods are the property of the Seller and upon request must advise the Seller of the location of the Goods;
the Buyer must store the Goods separately and in such a way that the Goods remain identifiable;
the Buyer must keep the Goods insured against loss and damage;
the Buyer must keep the Goods free from all encumbrances and charges;
the Buyer shall be bailee for the Seller;
the Buyer irrevocably authorises the Seller to:
enter any of the Buyer’s properties and inspect the Goods;
enter any of the Buyer’s properties, without notice, and without being in any way liable to the Buyer or to any third party and repossess and dispose of the Goods if the Seller has cause to exercise any of the Seller’s rights under the Contract;
the Buyer indemnifies the Seller against any claim, demand or action arising out of or in connection with the Seller exercising its right under clause 6(f)(vi)(B) (including any claims made by any third party as a result of that exercise); and resell the Goods at such price and upon such terms as it sees fit and the proceeds of such sale, after deduction of all expenses, shall be deducted from the amount due;
if the Buyer re-sells the Seller’s Goods (whether those Goods are re-sold alone or as part of a manufactured product) before the Buyer has paid the Price, the Buyer acknowledges and agrees that: it holds the proceeds of the re-sale or disposal and any rights or claims against third parties arising out of such re-sale or disposal in a fiduciary capacity for and to the account of the Seller until the Buyer has paid all sums whatsoever due to the Seller; and the Buyer must take all steps necessary to keep such proceeds separate from other monies, to pay over such proceeds to the Seller and to transfer to the Seller any such rights or claims to the extent necessary to discharge in full the Buyer’s indebtedness to the Seller; and the Buyer has no authority to enter into any contract or condition or give any warranty or representation in relation to the Goods which may render the Seller liable to any third party for breach of such contract or condition or for inaccuracy of such warranty or representation which may render the Seller chargeable to any tax or duty.
If after 14 days from the date on which the Goods are ready for despatch, delivery is delayed due to the Buyer’s act, omission, breach or default, the Seller may at its election: store the Goods at its premises or elsewhere and the cost of storage, handling and insurance shall be payable by the Buyer on the Seller’s demand; or terminate the Order without liability to the Buyer.
The Buyer acknowledges and agrees that once an Order is accepted by the Seller, the Buyer is liable to pay the Price, notwithstanding any storage of Goods in accordance with clause 6(g)(i).
The Buyer acknowledges and agrees that delivery of Goods must not be deferred without the prior written consent of the Seller.
7 ACCEPTANCE OF GOODS
Within 24 hours of delivery, the Buyer must notify the Seller if the Goods do not conform to the Order. The notice must be written and must contain the Order number, the delivery date and reasonable detail of the non-conformity. Failure to give such notice shall constitute an irrevocable acceptance of the Goods by the Buyer.
Non-conformity of any part of the ordered Goods will not entitle the Buyer to reject all of the ordered Goods.
8 FORCE MAJEURE
If the Seller cannot supply the Goods due to any cause beyond its control such as any act or neglect of any carrier, sub- contractor, manufacturer or supplier of the Seller, acts of God, strikes, lock-outs, bans or other industrial disturbances, fire, flood, explosion, civil riot or commotion, government interference or request, by-laws, rules or regulations or order of any competent authority, the Seller may elect to: extend the time for performance; or terminate the Order if the force majeure continues for a period of 14 days or more, without liability to the Buyer for the Seller’s failure.
9 INTELLECTUAL PROPERTY
The Buyer grants to the Seller a non exclusive, royalty-free licence for the term of the Contract to use any material supplied by the Buyer to the Seller in the course of this Contract only for the purposes of, and in connection with, performing its obligations under the Contract.
9.2 Existing material
Clause 9.1 does not affect the ownership of or Intellectual Property Rights in any material developed by the Buyer or the Seller prior to the creation of the Contract or independently of the purchase of the Goods under the Contract.
The Buyer warrants that:
the licence granted by the Buyer pursuant to clause 9.1 does not infringe Intellectual Property Rights (or moral rights) of any party; and
it is entitled, and will be entitled at all relevant times, to deal with the material and the Intellectual Property Rights as required under this clause 9.
The Buyer is responsible for obtaining its own insurance in respect of the Goods (including insurance which covers the Goods while in transit), at the Buyer’s cost.
The following events are insolvency events:
the commission by the Buyer of any act which is defined as an “act of bankruptcy” under the Bankruptcy Act 1966 (Cth) or the New Zealand Insolvency Act 2006 (as applicable);
a garnishee notice, or a notice under section 120 of the PPSA, is given to:
a debtor of the Buyer; or any other person that otherwise owes or may owe money at any time to the Buyer,
in connection with any money that the Buyer is said to owe;
an application is made to a court for a provisional or final order declaring the Buyer provisionally or finally bankrupt or insolvent;
the Buyer is, or makes a statement from which it may be reasonably deducted by the Seller that a ground or grounds on which the Buyer may be wound up exists as specified in section 461 (or in the case of a part 5.7 body, section 585) of the Corporations Act;
the Buyer has a controller appointed, is in liquidation, in provisional liquidation, under administration or wound up or has had a receiver, or receiver and manager, or administrator appointed to any part of its property;
a resolution is passed to wind up or dissolve the Buyer;
a petition being presented for the sequestration of the Buyer’s estate or assets or for the winding up of the Buyer;
the Buyer being a company is deregistered;
a mortgagee, chargee or other holder of security, by itself or by or through an agent, enters into possession of all or any part of the assets of the Buyer;
the Buyer applies for, consents to, or acquiesces in the appointment of a trustee or receiver in respect of the Buyer or any of its property;
the Buyer takes any step to obtain protection or is granted protection from its creditors under any applicable legislation or a meeting is convened or a resolution is passed to appoint an administrator or a controller is appointed in respect of any part of the property of the Buyer;
the Buyer is or states that it is unable to pay its debts when they fall due;
except to reconstruct or amalgamate while solvent on terms approved by the Seller, the Buyer enters into or resolves to enter into a scheme of arrangement, compromise or re- construction with its creditors (or any class of them) or with its members (or any class of them) or proposes a reorganisation, re-arrangement, moratorium or other administration of the Buyer’s affairs;
the Buyer is the subject of an event described in section 459(C)(2) of the Corporations Act; or
anything analogous or having a substantially similar effect to any of the events specified above happens in relation to the party.
In the event of: an Insolvency Event;
the Buyer failing to make any payment to the Seller on the due date; or
the Buyer not complying with an obligation under these Conditions,
the Seller may, without prejudice to any other remedy, have the right to:
cease production of the Goods;
decline to deliver the Goods or any balance of the Goods the subject of an Order;
stop any Goods in transit;
otherwise cease to perform any of its obligations to the Buyer;
terminate the Contract with the Buyer without incurring any liability at law or in equity and without prejudice to the Seller’s right to recover amounts owing to it by the Buyer; and/or
sell the Buyer’s ordered Goods elsewhere and recover from the Buyer any difference between the quoted price and the re-sale price.
Termination does not affect the accrued rights and obligations of the parties under the Contract, including with respect to any payments due to the Seller or any indemnities given by the Buyer under the Contract.
12 TERMINATION FOR CONVENIENCE
The Seller may, at any time, by giving 14 Business Days written notice to the Buyer for any reason whatsoever, terminate this Contract without prejudice to the rights of either party accruing prior to the date of termination.
If this Contract is terminated under this clause 12: the Seller will only be liable for fulfilling any order accepted in accordance with clause 2(g) up to the date of termination; and the Buyer will only be liable for payment for any Goods accepted in accordance with clause 2(g) up to the date of termination.
13 WARRANTY AND LIABILITY OF SELLER
The Buyer is liable for and agrees to indemnify the Seller and any of the Seller’s employees, officers, agents and representatives against all loss (including legal costs and expenses on a solicitor/own client basis), liability (including for any loss or damage to property, injury or death to any person), and claims by any person, arising directly or indirectly from or in connection with any one or more of the following:
the misuse of the Goods by the Buyer or any of its employees, agents, officers or contractors;
the handling, storage or transport of the Goods by the Buyer or any of its employees, agents, officers or contractors;
any act, omission, negligence or default of the Buyer or any of its employees, agents, officers or contractors;
the breach of any provision of the Contract by the Buyer or any of its employees, agents, officers or contractors;
the breach of any laws by the Buyer or any of its employees, agents, officers or contractors;
any damage caused to the Goods by the Buyer or any of its employees, agents, officers or contractors;
any representation by the Buyer or any of its employees, officers, agents or contractors as to how the Goods will be used; and
any death or injury to any person due, either in whole or in part, to the act, omission, negligence or default of the Buyer.
The Seller will not be liable to the Buyer for:
losses arising from the delay in supply of the Goods;
unless otherwise agreed in writing, loss or damage arising from recommendations and suggestions provided to the Buyer;
loss or damage if the Goods are not fit for the Buyer’s or a third-party’s purpose;
loss or damage to the Goods arising out of any act, omission or negligence of the Buyer or its agent or representative; or
loss or damage due to the Buyer’s misuse of the Goods.
To the extent permitted by law all warranties, conditions, liabilities or representations in relation to the quality or fitness of Goods) other than any being or giving rise to non-excludable rights under any laws of Australia or its State or Territories or New Zealand (as applicable)) which might otherwise be implied herein by law or otherwise are expressly negatived and excluded.
The Buyer acknowledges and agrees that it is liable for all losses and liabilities resulting from the use of the Goods (either alone or in conjunction with other Goods or materials) even if the Seller had, or should have had, prior knowledge of the use to which the Goods would be put.
The Buyer agrees that to the extent permitted by law: the Seller will not be liable for and the Buyer releases the Seller from all liability for any loss of profits, direct, indirect or consequential loss or damage which is or may be sustained by the Buyer or any of its employees, officers, agents, contractors or other users of the Goods arising out of or in connection with the Contract and the supply of Goods; and
the Seller’s overall liability to the Buyer or any of its officers, employees, agents, contractors or other users of the Goods arising out of or in connection with the Contract and the supply of Goods is limited to the value of the Goods supplied.
These Conditions shall be governed and construed in accordance with the laws of the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales except in respect of a sale to a New Zealand customer where New Zealand law requires the matter to be handled by New Zealand Courts.
Any statement, invoice, notice or other document including any court process (“Notice”) may be given or delivered to or served upon the Buyer by the Seller by dispatch by prepaid post addressed to the Buyer at the last address of the Buyer known to the Seller. The Buyer shall be deemed to have received any Notice 3 Business Days after posting.
The Buyer shall not assign any rights or obligations under the Contract without the prior written consent of the Seller.
The Seller may assign its rights (including the right to payment) to a third party without the consent of the Buyer.
Unless the Contract expressly provides otherwise, a consent under the Contract may be given or withheld in the absolute discretion of the party entitled to give the consent and to be effective must be given in writing.
The Seller’s acquiescence, conduct or failure to require performance does not constitute a waiver of the Seller’s rights unless otherwise expressly notified to the Buyer in writing.
Each party will bear its own costs and disbursements of or incidental to the negotiation, preparation, execution, stamping and registration of the Contract, and all other matters and agreements referred to in the Contract.
Each party must promptly do all further acts and execute and deliver all further documents (in a form and content reasonably satisfactory to that party) required by law or reasonably requested by another party to give effect to the Contract.
The singular shall include the plural and vice versa, words importing any gender shall include every other gender and where there is more than one Buyer the Buyers shall be bound jointly and severally.
If anything in the Contract is unenforceable, illegal or void then it is severed and the rest of the Contract remains in force, unless the severance would change the underlying principal commercial purpose or effect of the Contract.
If two or more provisions of the Contract are inconsistent or contradictory the numerical position of those provisions must not be a determinative factor in any decision, order or ruling that results in the severance of any conflicting provision.
The Seller may vary any provision of the Contract, at any time, by giving the Buyer notice in writing of the variations.
15 CREDIT ASSESSMENT
The Seller may refuse to supply the Goods to the Buyer on credit on the basis of the Seller’s credit assessment of the Buyer.
If the Seller for whatever reason ceases to grant credit to the Buyer in relation to the supply of Goods but continues to supply Goods on the basis that cash equal to or greater than the Price is paid at the time of delivery of the Goods, the Seller may at its option (and without notice to the Buyer) apply all or any part of the cash so paid in or towards payment of any amount outstanding for Goods previously supplied to the Buyer. In that event, the payment by the Buyer shall be deemed to be in respect of such Goods previously supplied and the provisions of clause 6(f) shall apply in all respects to the Goods delivered at the time such cash payment is made on the basis that such Goods are being supplied on credit.
The Seller will, in respect of personal information held in connection with the Contract:
comply with the Privacy Act 1998 (Cth) and the New Zealand Privacy Act 1993 (as applicable) and other legislation regarding privacy in force from time to time that is applicable to the Buyer or the Seller;
use the personal information only for or in connection with the purposes of the Contract;
not disclose personal information without the written authority of the Buyer except for the purposes set out in the Contract and for the purposes of fulfilling its obligations under this Contract or as required by law.
This Contract constitutes a security agreement for the purposes of the PPSA.
Definitions: unless the context requires otherwise, the terms used in this clause 17 have the meanings given to them in, or by virtue of, the PPSA.
Consideration: in consideration of the Seller agreeing to supply Goods to the Buyer, the Buyer:
grants to the Seller, at the Seller’s discretion, a Security Interest or a purchase money security interest/PMSI in the Goods;
agrees that any Goods supplied after the date of the Contract and any proceeds of sale of such Goods will be subject to:
the Security Interest or PMSI granted in the Contract; and
the terms of the Contract;
agrees that the Security Interest or PMSI has attached or will attach to all Goods supplied now or in the future to the Buyer when the Buyer takes possession of the Goods and that the attachment of the Security Interest or PMSI has not in any way been deferred or postponed from the date of the Contract; and
agrees to treat the Seller’s Security Interest or PMSI in the Goods as a continuing and subsisting security with priority over a registered general security and any unsecured creditors.
Buyer must take all steps: the Seller may, by notice to the Buyer at any time, require the Buyer to take all steps that the Buyer considers necessary or desirable to:
ensure that the Contract or any Security Interest or PMSI arising under it, is enforceable against the Buyer or any third party; and
protect, perfect, record, or better secure the Seller’s position under the Contract as a first ranking security.
Registration: the Buyer acknowledges that the Seller reserves the right to register a financing statement in respect of any Goods supplied by the Seller to the Buyer under the Contract and that the Seller can require the Buyer to pay the cost and expense of registering a financing statement or a financing change statement.
Notices: the Buyer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest or
PMSI under the Contract, unless the notice or statement is required by law and cannot be excluded.
Protection of Goods: the Buyer agrees:
not to allow any person to register a financing statement over any of the Goods supplied by the Seller without the Seller’s prior written consent;
that the Buyer must immediately notify the Seller if the Buyer becomes aware of any person taking steps to register a financing statement in relation to the Goods; and
to perfect and maintain any Security Interest or PMSI that the Buyer may have in the Goods under the PPSA.
(h) Contracting out of enforcement provisions:
if Chapter 4 of the Australian PPSA would otherwise apply to the enforcement of a Security Interest arising out of the Contract, the Seller and the Buyer agree that to the extent permitted by law, each of the provisions of the Australian PPSA which section 115 of the Australian PPSA permits parties to contract out of, other than sections 117, 118, 123(1), 134(1) and 135, do not apply to the enforcement of that Security Interest.
The parties agree that sections 114(i)(a), 133 and 134 of the New Zealand PPSA are excluded. The Buyer waives its rights under sections 121, 125, 129, 131 and 132 of the New Zealand PPSA.
Confidentiality: the Seller and the Buyer may not disclose any information of a kind referred to in section 275(1) of the Australian PPSA that is not in the public domain. The Buyer agrees that the Buyer will only authorise the disclosure of information under section 275(7)(c) or request information under section 275(7)(d), if the Seller approves.
Insolvency: if the Buyer becomes insolvent, without prejudice to any of the Seller’s other rights:
the Buyer’s right to dispose of the Goods in the ordinary course of business in accordance with the PPSA and any of the Buyer’s other rights in respect of the Goods immediately cease; and
the Buyer must immediately return the Goods to the Seller in which title has not passed as provided for under clause 6(f).