Terms & Conditions of Sale

In consideration of the mutual obligations referred to in these Terms,
the Customer and NoBlast (NB) agree that:
1. APPLICABILITY AND VARIATION
1.1 These Terms apply to every sale by NB of Products to the
Customer, whether or not clause 21 (Signatory Section) has
been completed, and remain in full force and effect until
the Customer receives Products that the Customer has
purchased and NB has received payment in full and in
cleared funds for those Products.
1.2 These Terms prevail over any oral representations or other
conditions that may be or have been communicated
between NB and the Customer including, without
limitation, any conditions of the Customer’s order.
1.3 Waivers or variations to these Terms will only have effect
if made in writing and signed by a duly authorised officer
of NB.
2. ORDERS FOR PRODUCTS
2.1 The Customer may order Products from NB by any means
approved by NB from time to time. NB may require the
Customer to apply for credit on terms and conditions that
NB may, in NB’s sole discretion, specify.
2.2 Any order placed with, or submitted to NB, by a Customer,
orally or in writing, shall be subject to these Terms and
subject to acceptance by NB at the sole discretion of NB.
2.3 NB may, at its sole discretion, accept or reject any order for
Products and may withhold Products contracted to be sold
to the Customer, if the Customer’s ability or willingness to
pay NB for those Products is in doubt, without repudiating
the contract or incurring any liability.
2.4 The Customer must not cancel any order after that order
has been accepted by NB without NB’s prior written
approval on such terms as NB may reasonably specify
including, without limitation, the conditions in clause 7.5.
3. PRICES
3.1 The prices for the Products are the prices referred to in the
Price List or confirmed by NB in writing from time to time,
plus any additional charges for freight and delivery referred
to in the Price List or in clause 5.
3.2 Prices and quotations are inclusive of GST unless
otherwise noted and the Customer is liable for the amount
of any GST payable in respect of any taxable supply made
to the Customer by NB.
4. TERMS OF PAYMENT
4.1 Payment for any Customer order accepted by NB becomes
due, immediately payable and must be made in full and
without offset or withholding on or by the Payment Date in
a manner approved by NB from time to time. Unless
otherwise agreed in writing, payment for the Products
ordered must be made at the time that order is made. If
credit terms are provided by NB to the Customer, payment
must be made no later than thirty (30) days after the date of
NB’s tax invoice for the Products. Credit terms may be
revoked or amended at the sole discretion of NB
immediately upon written notice to the Customer.
4.2 Interest is payable by the Customer on all amounts overdue
under these Terms at the ordinary Commonwealth Bank of
Australia commercial overdraft rate plus 2%, calculated
daily from the Payment Date, until the date NB receives
payment in full.
5. DELIVERY
5.1 NB will make reasonable efforts to arrange for the delivery
of Products purchased by the Customer on the date
estimated by NB or agreed between NB and the Customer.
The Customer agrees that NB is not and will not be liable
for any loss incurred or damage suffered by the Customer,
however it arises, in the event that the Products are not
delivered by any estimated or agreed date.
5.2 NB will add a delivery fee to the price of the Products
being delivered and the Customer will be liable to pay that
delivery fee. The delivery fee payable will be based on the
rates published or reasonably determined by NB from time
to time.
5.3 NB will make reasonable efforts to deliver the Products to
the location the Customer notifies to NB. In the event that
delivery can not be effected by NB at that location NB
may, at its discretion, leave the Products at that location or
store the Products at its discretion. The Customer agrees to
immediately pay to NB any costs or expenses reasonably
incurred by NB to store or re-deliver the Products to the
Customer.
5.4 NB reserves the right to deliver the Products in one
delivery, or by instalment, unless otherwise agreed. Each
instalment will be deemed a separate sale and must be paid
for separately by the Customer.
6. RISK AND INSURANCE
6.1 All risk in the Products shall, unless otherwise agreed in
writing, pass to the Customer upon delivery of the Products
to the Customer or the Customer’s nominated agent or
representative or to a carrier commissioned by the
Customer.
6.2 The Customer warrants that the Customer shall take out
and maintain all policies of insurance with a reputable
insurer which a prudent business person in the position of
the Customer would reasonably maintain including,
without limitation, product and public liability insurance
policies which give coverage against all usual risks and for
a reasonable amount.
7. EXAMINATION AND RETURN OF PRODUCTS
7.1 The Customer must immediately examine Products on
delivery and must notify NB in writing no later than two
(2) days after delivery of any short or defective delivery of
any Products.
7.2 Except as may otherwise be provided by applicable laws,
the Customer agrees that the Customer is deemed to have
accepted a delivery of Products:
(a) within two (2) days after delivery unless prior to
that time the Customer has notified NB in writing
of its rejection of that delivery and the reasons
for the rejection are accepted by NB; or
(b) immediately upon use or opening of the Products
or the doing of any other act inconsistent with the
ownership by NB of the Products,
whichever is the earlier.
7.3 The Customer agrees that NB is not required to accept the
return of any Products for credit unless the conditions in
this clause 7 have been fully complied with by the
Customer. Any Products returned to NB must be returned
in the same condition as despatched.
7.4 If NB’s Products are opened, used, resold or NB receives
no notification of rejection of the Products within the stated
time then NB shall be entitled to payment in full and NB
shall not be liable for any claims, loss or damage that may
subsequently arise.
7.5 If NB agrees, at NB’s sole discretion, to accept the
cancellation of orders or the return of Products (other than
defective Products) the Customer must pay to NB a
handling and restocking charge equivalent to 20% of the
price of the Products. The Customer agrees that this charge
is a reasonable estimate of the cost of cancellation of orders
or the return of Products to NB.
8. HANDLING AND USE OF PRODUCTS
8.1 The Customer acknowledges and agrees that:
(a) the Products are, if used other than in accordance
with the directions, instructions and safety
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warnings provided by NB, capable of causing
serious injury to persons;
(b) the Products may include goods that will react
with water and must be stored in a dry location at
all times prior to use;
(c) the Customer must make reasonable efforts to
independently investigate the proper application
and use of the Products for the purpose for which
the Customer is purchasing the Products; and
(d) in entering into these Terms, NB is relying on the
Customer’s warranties contained in clause 8.2.
8.2 The Customer acknowledges and warrants that the
Customer shall:
(a) obtain from NB, read and comply with the
Material Safety Data Sheet for the Products;
(b) use the Products only for the purpose for which
those Products are supplied;
(c) read and comply with all directions, instructions
and safety warnings that are provided or
published by NB in relation to the Products
including, without limitation, instructions on how
to handle, store and use the Products; and
(d) only use the Products in accordance with any
relevant laws or regulations relating to the
Products including, without limitation, laws or
regulations concerning the environment,
occupational health and safety and the
construction industry.
9. OWNERSHIP OF PRODUCTS
9.1 Until Payment in full has been received by NB from the
Customer in accordance with these Terms:
(a) full and absolute ownership of and title in
Products delivered to the Customer remains with
NB;
(b) the Customer holds any and all Products as bailee
and fiduciary for NB and will immediately return
the Products to NB when required by NB at the
Customer’s cost;
(c) the Customer authorises and grants an
irrevocable licence to NB and its authorised
representatives to enter any premises where any
Products are kept to repossess the Products and to
use all reasonable force in doing so without any
liability for any resulting damage;
(d) the Customer must not allow any person to have
or acquire any interest in the Products;
(e) the Customer must insure the Products for their
full insurable or replacement value (whichever is
higher) with an insurer licensed and authorised to
conduct insurance activities where the Customer
conducts business;
(f) the Customer may only sell any and all Products,
or products manufactured using the Products, in
the ordinary or usual course of business and as
NB’s fiduciary and agent and provided that:
(i) the entire proceeds of the sale of those
Products are immediately paid to NB or
held by the Customer on trust for NB
separately for its account, not mixed with
the purchaser’s other money, debts or
property and payable immediately without
demand;
(ii) NB has the right to trace the proceeds of
any such sales in accordance with equitable
principles; and
(iii) the Customer assigns the benefit of any
claim against the Customer and accounts
fully to NB for the proceeds of the sale
unless and until all monies owing by the
Customer to NB under this agreement are
paid and received by NB in full; and
(g) the Customer shall store and label all Products in
a way that clearly manifests NB’s title to such
Products.
9.2 If these Terms are terminated, the provisions of this clause
9 will survive that termination and continue to the extent
that NB may exercise the rights under these Terms to
recover its property and any money due to it.
10. DEFAULT
10.1 The Customer acknowledges and agrees that if:
(a) the Customer fails to pay when due any amount
owing to NB;
(b) the Customer fails to comply with any of these
Terms;
(c) any step is taken to enter into any arrangement
between the Customer and its creditors;
(d) the Customer ceases to be able to pay its debts as
they become due or ceases to carry on business;
(e) any step is taken to appoint a receiver, a receiver
and manager, a trustee in bankruptcy, a
liquidator, a provisional liquidator, an
administrator or other like person over the whole
or any part of the Customer’s assets or business;
or
(f) in NB’s opinion, the Customer’s credit standing
has materially changed,
then NB may do any or all of the following (in addition to
any other rights NB may have, including termination of
these Terms):
(g) require the Customer to immediately pay all
amounts that are invoiced but unpaid and to pay
in advance for any further supply or delivery of
Products (even if specified otherwise in any
invoice or confirmation of order given to the
Customer by NB);
(h) suspend or cease supplying Products to the
Customer (whether or not the Customer has
ordered Products that have not yet been
supplied);
(i) demand that the unpaid for Products be
immediately returned to NB at the Customer’s
expense;
(j) enter the Customer’s premises and repossess
Products for which payment is overdue; or
(k) cancel any other contract(s) with the Customer or
such parts as NB sees fit.
10.2 These rights are without prejudice to any other right or
demand available to NB.
10.3 The Customer will be liable to NB for all costs incurred by
NB, including all costs on a full indemnity basis, in
securing Payment or recovering the unpaid Products and
will be liable to NB for all costs incurred by NB arising,
directly or indirectly, as a result of non payment of
Products, including legal costs.
11. WARRANTY AND LIMITATION OF LIABILITY
11.1 NB warrants that the Products supplied are of merchantable
quality and fit for the express purpose for which they are
supplied however, to the fullest extent permissible by law,
NB otherwise makes no representations or warranties, and
excludes all conditions, express or implied in these Terms
regarding any matter, including (without limitation) noninfringement
or results to be derived from the use of any
Products.
11.2 Any description given by NB of the Products is given by
way of identification only and the use of or reliance on that
description by the Customer shall not constitute any
contract between the Customer and NB as a sale by
description.
11.3 To the fullest extent permitted by law, NB excludes and
expressly disclaims any and all liability for any loss,
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expense, damage or claim suffered or incurred by the
Customer (whether direct, indirect or consequential),
including but not limited to, lost profits, costs and damages
sustained or incurred as a result of a claim by any person
arising in any way out of:
(a) the manufacture, supply or use of the Products;
(b) use of the Products in a manner other than in
accordance with the directions or instructions of
NB;
(c) use for the Products for any purpose other than
their intended purpose;
(d) any breach of any of these Terms by the
Customer; and
(e) any negligent act or omission of the Customer, its
officers, employees, contractors or agents.
11.4 To the fullest extent permitted by law, the liability of NB
for a breach of a non-excludable condition or warranty is
limited, at NB's option, to:
(a) in the case of goods any one or more of the
following:
(i) the replacement of the goods or the
supply of equivalent goods; or
(ii) the payment of the cost of replacing the
goods or of acquiring equivalent goods;
or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the
services supplied again.
12. INDEMNITY
12.1 The Customer agrees to immediately indemnify and keep
indemnified NB and NB’s directors, officers, employees
and agents, from and against any and all claims, losses,
damages, costs, judgments, expenses and liabilities of any
kind (including, without limitation, reasonable legal costs)
whether for personal injury or property damage, arising out
of or in connection with:
(a) the Customer’s purchase, marketing, distribution
or use of the Products, including any third party
use of the Products, whether in the good's
present form or as processed or combined with
other materials into another form, that is in
breach of any term, condition or warranty
referred to in these Terms;
(b) any breach by the Customer, the Customer’s
employees, directors or agents (if any) of any
term, condition or warranty referred to in these
Terms;
(c) the breach or infringement by the Customer or
the Customers employees, directors or agents (if
any) of any laws or regulations relating to the
Products; and
(d) any negligent act or omission of the Customer,
the Customer’s employees, directors or agents (if
any).
13. ADVICE
13.1 Any advice, recommendation, information, assistance or
service provided by NB in relation to Products is given in
good faith and is believed by NB to be appropriate and
reliable. However, to the fullest extent permitted by law,
any advice, recommendation, information, assistance or
service provided by NB in relation to any Products
supplied by NB is provided without liability or
responsibility on the part of NB.
14. MATERIALS AND INTELLECTUAL PROPERTY
14.1 NB may supply the Customer with Materials. NB reserves
the right to direct the Customer to discontinue use of any
Materials at any time and reserves the right to direct the
Customer to return all such Materials to NB immediately
upon receipt of notice to that effect.
14.2 NB and others own or licence and reserve all Intellectual
Property rights in the Materials, Products and any other
materials notified or provided to the Customer. The
Customer acknowledges and agrees that the Customer has
no proprietary right or interest in any Intellectual Property
rights relating to the Materials and Products. If NB makes
available or introduces any of its Intellectual Property to
the Customer in providing Products to the Customer then
all proprietary rights to that Intellectual Property shall
remain the sole property of NB.
15. PERSONAL INFORMATION
15.1 Any personal information, including personal financial
information, relating to the Customer or the directors,
employees or agents of the Customer that is collected, used
or disclosed by NB for the purposes of the sale or supply of
Products to the Customer is treated as confidential and will
only be collected, used or disclosed in the following
manner:
(a) for the purposes of meeting NB’s obligations under
these Terms;
(b) to respond to any queries that the Customer may have;
(c) to recover any Products or money owing to NB;
(d) in accordance with the Privacy Policy (if any) of NB; or
(e) in compliance with the requirements of the Privacy Act
1988 (Cth).
16. FORCE MAJEURE
16.1 Without limiting the generality of clause 5, NB shall not be
liable for any loss or damage caused by its failure or delay
to supply the Products due to anything outside the
reasonable control of NB including but not limited to acts
or omissions of the Customer, breakdown of plant or
machinery, shortage of labour, strikes, lockouts, industrial
disputes, fire or arson, storm or tempest, theft, vandalism,
riots, civil commotions, terrorist actions, wars, government
restrictions, intervention or control, transport delays,
accidents or embargoes of any kind.
17. SEVERANCE
17.1 If any provision of these Terms is or becomes wholly or
partly illegal, invalid or unenforceable then, from the date
of the invalidity or unenforceability, if the offending
provision can be read down to make it valid or enforceable
it must be read down to the extent necessary to achieve that
result and otherwise that provision must be severed from
these Terms and the remaining provisions shall remain in
full force and effect and not be affected and operate as if
the severed provision had not been included.
18. WAIVER AND ASSIGNMENT
18.1 The Customer must not assign or transfer the benefit of
these Terms without the express written consent of NB.
NB may, on reasonable notice to the Customer, assign or
transfer the benefit of these Terms to any third party. No
waiver by NB of any default or breach shall be deemed a
waiver of any prior or subsequent default or breach.
19. GOVERNING LAW
19.1 These Terms will be governed by and construed in
accordance with the laws of the State of New South Wales,
in Australia. The parties agree to submit to the nonexclusive
jurisdiction of the Courts of New South Wales.
20. DICTIONARY AND INTERPRETATIONS
20.1 Dictionary
In these terms and conditions:
(a) Customer means:
(i) a person whose order for Products is
accepted by NB in accordance with these
Terms; or
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(ii) the Signatory (if any),
as the case may be;
(b) GST means any tax on Supply (without regard to
any input tax credit) imposed by or through the A
New Tax System (Goods and Services Tax) Act
1999 and A New Tax System (Goods and
Services Tax) Transition Act 1999 and any
related tax impositions legislation;
(c) Intellectual Property means all forms of
intellectual property throughout the world
including copyright, registered patent, design,
trade mark and confidential information
including know-how and trade secrets;
(d) Materials means any and all marketing and
promotional materials relating to the Products;
(e) NB means No Blast Pty Limited (ABN 21 140
282 944);
(f) Payment means receipt by NB of cash or cleared
funds;
(g) Payment Date means the date notified to the
Customer by NB at the time the Customer
purchases the Products;
(h) Price List means a list or schedule, in any
material form, of prices for goods offered for sale
by NB plus associated costs or charges including,
without limitation, freight and GST, that is
published by NB from time to time;
(i) Products means those goods offered for sale by
NB, in accordance with these Terms, that are to
be provided by NB to the Customer under this
Agreement;
(j) Signatory means the person specified in clause
21 (Signatory Section) of these Terms; and
(k) Terms means the terms and conditions referred
to in these Terms and Conditions of Sale.
20.2 Interpretation
In these Terms unless the context otherwise requires:
(a) words importing the singular include the plural
and vice versa;
(b) other parts of speech and grammatical forms of a
word or phrase defined in these Terms have a
corresponding meaning;
(c) an expression importing a natural person includes
a company, partnership, joint venture,
association, corporation or other body corporate
and a Government Agency;
(d) a reference to a thing includes a part of that thing;
(e) a reference to a law includes a constitutional
provision, treaty, decree, convention, statute,
regulation, ordinance, by-law judgment, rule of
common law or equity or a rule of an applicable
stock exchange and is a reference to that law as
amended, consolidated or replaced;
(f) a reference to a party to a document includes that
party's successors and permitted assigns;
(g) an agreement on the part of two or more persons
binds them severally;
(h) where the day on or by which something must be
done is not a business day, that thing must be
done on or by the following business day; and
(i) headings are for convenience only and do not
affect the interpretation of these Terms.