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Conditions of Sale

1. Definitions

ACL or Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.

ATOM means Aqua Terra Oil and Mineral Service and Supply Company Pty Ltd (ACN 009 347 399).

Consumer Guarantee means a right or guarantee a Customer may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded.

Contract means the contract for supply of Goods including the Purchase Contract, these terms and conditions, and any applicable terms between the parties relating to the provision of credit by ATOM to the Customer.

Customer means the entity set out in the Purchase Contract or their agents and includes a bailee or consignee.

Default has the meaning set out in clause 6.

Goods mean all goods and equipment that ATOM supplies to the Customer on a sale, bailment, consignment or any other basis.

Invoice Due Date means the latest date for which payment of an invoice can be made by a Customer, being 30 days from the end of the month the invoice is issued.

Purchase Contract means a purchase order for Goods entered into by the parties setting out the details of a purchase transaction.

Purchase Price means the aggregate price for the Goods set out in the Purchase Contract.

The word include is construed without limitation.

2. Delivery & Payment

2.1 ATOM will use commercially reasonable efforts to deliver Goods in accordance with any dates or time periods agreed in the relevant Purchase Contract.  ATOM will not be liable for any delay or non-delivery of any Goods ordered where such event is at the fault of the Customer, or any external event outside of the reasonable control of ATOM.

2.2 The Customer will be liable for freight costs for Goods as specified in the applicable Purchase Contract or otherwise agreed between the parties.

2.3 Unless specified otherwise in the relevant Purchase Contract, ATOM will invoice the Customer the Purchase Price at the time that the Goods are dispatched.  The Customer will pay to ATOM all of the Purchase Price by the Invoice Due Date.

2.4 Intentionally omitted.

2.5 Intentionally omitted.

2.6 If the Customer fails to pay in accordance with these terms, then all outstanding amounts become immediately payable and ATOM may:

  1. Decline to provide further Goods while existing amounts remain outstanding;
  2. Charge interest on all outstanding amounts at a rate two percentage points above the Reserve Bank of Australia's then current per annum Cash Rate, calculated daily; and/orc)
  3. Recover from the Customer any reasonable costs incurred by ATOM in connection with the recovery of amounts overdue.

2.7 Intentionally omitted.

2.8 Payment by cheque will be deemed to have occurred when the cheque has been honoured. Payment by credit card may incur a surcharge.  Such surcharge will not exceed the costs incurred by ATOM to process the credit card payment.

2.9 Any expenses, costs or duties specified in the Purchase Contract in relation to the supply of Goods to the Customer in accordance with these terms and conditions will be added to the amount outstanding and paid by the Customer.

2.10 ATOM may apply any amounts received from a Customer to particular amounts outstanding at its sole discretion.

2.11 In the case of dispute regarding payment the Customer must pay all undisputed amounts without delay.

2.12 Intentionally omitted.

2.13 ATOM reserves the right to change the Purchase Price at any time prior to acceptance of a Purchase Contract.  Where this occurs, the Purchase Contract is not binding on either party until the variation is accepted by the Customer.

3. Returns

3.1 In addition to any rights that the Customer may have (under these terms and conditions or otherwise at law) in respect of any defective Goods, ATOM will credit the Customer for, or replace, Goods returned on ATOM’s prior approval if:

  1. the Goods are returned in their original condition and packaging, and in full package quantities within 14 days of dispatch;
  2. a copy of the corresponding tax invoice or delivery docket supplied with the Goods;
  3. the Customer bears all freight charges incurred in returning the Goods (unless agreed otherwise).

3.2 Any credit granted by ATOM to the Customer in respect of Goods returned according to clause 3.1:

  1. will expire twelve months after the date of the grant of the credit; and
  2. shall not be redeemable for cash.

3.3 Where any Goods have express warranties provided by the relevant manufacturer, the Supplier agrees to provide reasonable assistance to the Customer in order for the Customer to receive the benefit of those express warranties.

3.4 Where the Customer is a 'consumer' for the purpose of the Australian Consumer Law, the following statement applies:

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law.

You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.

You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

4. Title, Risk & Insurance

4.1 ATOM retains ownership of the Goods until the full Purchase Price has been received by ATOM in cleared funds.

4.2 All risk in the Goods and the responsibility to insure the Goods will pass from ATOM to the Customer when the Goods leave ATOM’s possession for delivery to the Customer.

4.3 The Customer must effect, maintain and provide evidence to ATOM of:

  1. sufficient insurance cover for loss or damage to any Goods; and
  2. where ATOM has supplied Goods on hire or consignment, third-party insurance which covers the public liability risk of ATOM to a minimum amount of $20 million.

5. Consignment & Bailment

5.1 A consignment Customer must comply with the provisions of this clause in addition to all other terms and conditions.

5.2 ATOM may by written agreement choose to supply Goods to Customer’s on consignment. ATOM will use reasonable endeavours to supply all Goods ordered under a consignment agreement.

5.3 ATOM may charge the Customer freight and shipping charges for Goods supplied on consignment, payable by the Invoice Due Date.

5.4 As soon as practicable after the end of each calendar month ATOM shall render a statement to the Customer showing sales during the preceding month the amount of which is payable under clause 2.4.

5.5 ATOM bears no liability whatsoever for the nature or operation of a consignment Customer’s business or employees.

5.6 A consignment Customer is solely responsible for all Goods supplied, mobilisation and demobilisation of Goods, damage to the Goods and all associated costs while they are in the possession of the Customer, unless the relevant damage or loss is caused by the actions of ATOM or its personnel.

5.7 If ATOM supplies Goods including containers or other items under a bailment-type arrangement, the title to any such items will remain with ATOM and clause 6 will apply. The Customer will not charge or allow any other party to use the bailed Goods.

6. Default & Termination

6.1 Either party may immediately terminate this Contract if the other party:

  1. has breached any of its obligations under this Contract and the breach remains unremedied for seven (7) days after being notified of the breach (Default); or
  2. being a person, dies, commits an act of bankruptcy; or
  3. being a company, takes or shall have taken against it any action for its winding up placement under management, administration or receivership.

6.2 Following termination:

  1. the Customer must immediately return the Goods held on consignment or that otherwise remain unpaid for, and, if not returned within 14 days, ATOM may enter upon the Customer’s premises or elsewhere to take possession of and remove such Goods, to the fullest extent permitted by Law; and
  2. if any further amounts are owed by the Customer to ATOM, ATOM may retain any security given or monies paid by the Customer or available through the enforcement of any guarantee, security or bond and apply this in reduction of any such amounts, provided that any surplus amount recovered in this manner must be promptly returned by ATOM to the Customer.

7. Security

7.1 If the Purchase Price is not paid in full on delivery then the Customer grants ATOM a security interest and ATOM may register a purchase money security interest over the Goods in accordance with the Personal Property Securities Act 2009 (PPSA) to secure all amounts owed to it.

7.2 The Customer will provide all information and do all things necessary to facilitate such registration. If any of the details of the Customer supplied to ATOM change, the Customer will immediately notify ATOM of these changes.

7.3 The Customer waives its rights to receive notices under clause 157 of the PPSA and confirms that sections 125, 130, 132(3)(d), 132(4), 135 and 143 of the PPSA are excluded.

7.4 If the Customer Defaults ATOM may enforce its security interest and use all lawful means and enter any property without notice to recover the Goods.

7.5 Any contract or arrangement between the Customer and a financier to finance the acquisition of Goods from ATOM shall not:

  1. alter or affect the nature of the Contract as one of sale and purchase;
  2. create any liability between ATOM and the financier in relation to the Goods; or
  3. affect, discharge or in any way limit or subordinate ATOM’s security interest in or title to any unpaid Goods.

8. Trust Customers

8.1 Where the Customer is a Trust, the Customer confirms that the trustees shall be liable for any amounts due to ATOM and that the assets of the trust shall be available to meet payment.

9. Credit

9.1 These terms and conditions do not constitute an offer by ATOM to provide the Customer with credit.  Any credit extended to the Customer is at the discretion of ATOM, will be the subject of separate terms issued by ATOM, and may involve:

  1. provision of a guarantee by a guarantor acceptable to ATOM;
  2. steps to ensure the creditworthiness of the Customer, its personnel and/or the guarantor; and
  3. limits on the amount of credit that ATOM is willing to provide.

9.2 Absent any further agreement between the parties with respect to credit, the Customer remains liable to pay all amounts due under each Contract at the times specified in these terms and conditions.

10. Limitations and Exclusions of Liability

10.1 With the exception of Consumer Guarantees, each party excludes:

  1. any term, condition or warranty that may otherwise be implied into a Contract; and
  2. any liability for any consequential loss in connection with a Contract.

10.2 ATOM and the Customer agree that, other than a claim pursuant to a Consumer Guarantee each party's liability for claims in connection with a Contract is limited to the Purchase Price.

10.3 The liability of ATOM in respect of any breach of or failure to comply with any Consumer Guarantee is limited to the following:

a. in the case of goods, to:

  1. the replacement of the goods or the supply of equivalent goods;
  2. the repair of the goods;
  3. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
  4. the payment of the cost of having the goods repaired.

b. in the case of services, to:

  1. the supplying of the services again; or
  2. the payment of the cost of having the services supplied again.

11. General

11.1 The Customer signatory warrants that it has full power and authority to bind the Customer to the obligations under the Contract.

11.2 All notices required by this Contract may be given by direct communication, either by telephone, electronically, fax or post to the addresses and numbers included in this Contract. If sent by post, a Notice will be considered to have been received, unless the contrary is shown, at the time when the Notice would have been delivered in the ordinary course of the post.

11.3 Each clause in these Terms is severable and if any clause is held to be illegal, unenforceable, or in breach of any provision of Australian law, then that clause alone will be severed to the extent of the breach and all other clauses will remain effective.

11.4 A party shall not be deemed to have waived any obligation under these terms and conditions or agreed to any variation of them unless it has done so expressly in writing.

11.5 In case of dispute the parties shall use their best endeavours to negotiate an agreement and will enter formal mediation prior to bringing any Court proceedings.

11.6 These Terms will be interpreted in accordance with and governed by the laws of Western Australia and the Western Australian courts will have non-exclusive jurisdiction in respect of all matters between ATOM and Customer.

11.7 ATOM will comply with the Australian Privacy Principles and the Privacy Act 1988. Without limiting any of ATOM's abilities to lawfully deal with personal information, the Customer consents (or warrants that the relevant individuals have consented) to ATOM, at its discretion, obtaining, using and disclosing personal information contained in the Purchase Contract for the purpose of:

  1. providing the Goods; or

  2. administering the Contract; or

  3. using a third party to pursue or collect any amount outstanding.

11.8 In the case of inconsistency between these terms and conditions and any subsequent agreement for the supply of Goods by ATOM including any Purchase Contract these terms and conditions shall take precedence unless expressly excluded.