No products in the cart.
1300 000 205
No products in the cart.

Foam Sealant Trading Terms and Conditions

1. Definitions

“Accepted Order” has the meaning given in clause 2.2.
“Australian Consumer Law” means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation.

“Business Day” means any day which is not a Saturday, Sunday or public holiday in Victoria.

“CCA” means the Competition and Consumer Act 2010 (Cth).
“Confidential Information” means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Goods or Services or Foam Sealant’s business.

“Contract” means the contract of supply of Goods and/or Services between Foam Sealant and the Customer which comprises these Terms, any terms set out in the Credit Application and the Accepted Order for the Goods and/or Services.

“Control” has the meaning given in section 50AA of the Corporations Act 2001 (Cth).

“Credit Application” means a credit application submitted by a Customer in a form approved by Foam Sealant.

“Customer” means the individual, body corporate, partnership or body politic (or any of them acting in the capacity as trustee of a trust) which purchases the Goods and/or acquires the Services (as applicable) from Foam Sealant pursuant to these Terms, the details of which are as specified in any invoice, Credit Application or Accepted Order.

“Delivery” or “Delivered” has the meaning provided in clause 5.3.
“Foam Sealant” means Foam Sealant Pty Ltd (ACN 068 983 755), its successors and assigns.

“Goods” means any products that Foam Sealant sells to the Customer as set out in an Accepted Order.

“Insolvency Event” in relation to a person means the happening of any of the following events to that person:

  1. They are (or state they are) an insolvent under administration or insolvent (each as defined in the Corporations Act 2001 (Cth)); or
  2. They have had a controller (as defined in the Corporations Act 2001 (Cth)) appointed, are in liquidation, in provisional liquidation, under administration or wound up or have had a receiver or a receiver and manager appointed to any part of their property; or
  3. They are subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved, (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by Foam Sealant); or
  4. An application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with them, which is preparatory to or could result in any of the things referred to in paragraphs (a) to (c) inclusive above; or
  5. They are taken (under section 459F of the Corporations Act 2001 (Cth)) to have failed to comply with a statutory demand or have committed an act of bankruptcy as defined in the Bankruptcy Act 1966 (Cth); or
  6. They are the subject of an event described in section 459C(2) or section 585 of the Corporations Act 2001 (Cth) (or they make a statement from which Foam Sealant reasonably deduces they are so subject); or
  7. They are otherwise unable to pay their debts when they fall due; or
  8. Something having a substantially similar effect to any of the things referred to above happens in connection with them under the law of any jurisdiction.


“Intellectual Property Rights” means:

  1. Inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
  2. Copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist;
  3. Confidential information and trade secrets;
  4. Trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and
  5. Proprietary rights under the Circuit Layouts Act 1989 (Cth).

“Loss” means any losses, liabilities, damages, costs, interest, charges, fines, penalties or expenses (including lawyer’s fees and expenses on a full indemnity basis) whether direct, indirect, special, consequential or otherwise.

“Price” means the Price payable for the Goods and/or Services in accordance with clause 4.

“Representatives” means officers, directors, employees, agents, representatives, contractors and / or subcontractors of the relevant party but a party to the Contract and its officers, directors, employees, agents, representatives, contractors and subcontractors are not “Representatives” of the other party to the Contract. “Services” means any services that Foam Sealant supplies to the Customer as set out in the Accepted Order.

“Terms” means these Trading Terms and Conditions.

  1. Order and Acceptance

    1. Each order placed by the Customer will constitute an offer by the Customer to acquire the Goods from Foam Sealant and/or engage Foam Sealant to provide the Services on and subject to these Terms.
    2. Foam Sealant may refuse to accept an order, or part of an order, placed by the Customer without giving reasons. On acceptance of an order by Foam Sealant (Accepted Order), a separate Contract will be formed between Foam Sealant and the Customer.
    3. The Customer may not, without Foam Sealant’s written consent, cancel an order after Foam Sealant has accepted the order. If Foam Sealant consents to the cancellation of an order, the Customer will be liable for all reasonable costs incurred by Foam Sealant up to the time of cancellation.
    4. The Customer is taken to have accepted and is immediately bound by these Terms if:
      1. The Customer accepts these Terms during the process of submitting its Credit Application (online or otherwise);
      2. The Customer signs these Terms;
      3. The Customer places an order for Goods or Services after receipt of these Terms; or
      4. The Customer accepts delivery of any Goods or Services after receipt of these Terms.
  1. Change in Control

    1. The Customer shall give Foam Sealant no less than fourteen (14) days prior written notice of:
      1. any proposed change of Control of the Customer; or
      2. any other change in the Customer’s details most recently provided to Foam Sealant (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s).
    2. The Customer is liable for any Loss suffered or incurred by Foam Sealant as a result of the Customer’s failure to comply with this clause.
  1. Price and Payment

    1. The Price payable by the Customer in connection with any Goods supplied, or Services provided by Foam Sealant, shall be Foam Sealant’s quoted price (subject to clause 4.2) which will be either valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
    2. Foam Sealant reserves the right to change the Price:
      1. If a variation to an Accepted Order is requested by the Customer, in which case Foam Sealant will notify the Customer in writing of the amount of any variation to the Price resulting from the variation (Price Variation). If the Customer does not accept the Price Variation, the Customer may cancel the proposed variation by notifying Foam Sealant in writing within 24 hours of receipt of the notice of the Price Variation. If the Customer neither accepts nor rejects the Price Variation, the Accepted Order will remain as is and Foam Sealant will proceed to fulfil that order on the basis of the original pricing and scope; or
      2. to reflect any actual increase in the costs and expenses incurred by Foam Sealant to supply the Goods or Services to the Customer, including without limitation, fluctuations in the currency exchange rate, or increases to Foam Sealant from suppliers in the cost of materials, goods, services, equipment and labour. Foam Sealant will provide the Customer with reasonable documentation to substantiate such variations, on request.
    3. A non-refundable deposit may be required by Foam Sealant for purpose built Goods which shall be due and payable within four (4) weeks of placing the order (and in any event prior to delivery of such Goods).
    4. Time for payment is of the essence. The Price will be payable by the Customer on the date/s determined by Foam Sealant, which may be:
      1. for Customers who have not been approved for credit by Foam Sealant, either before or on delivery of the Goods or Services; and
      2. for Customers who have been approved for credit by Foam Sealant in writing, within thirty (30) days of the date of each tax invoice issued to the Customer, unless otherwise notified by Foam Sealant to the Customer in writing.
    5. Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card excluding Diners Card (plus a surcharge of up to two percent (2%) of the Price on transactions made via American Express), or by any other method that Foam Sealant reasonably directs.
    6. Unless otherwise stated, the Price does not include GST or any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price. Such amounts will be payable by the Customer.
    7. The Customer must pay all amounts payable to Foam Sealant under these Terms without any deduction, withholding, counterclaim or set off.
  1. Delivery of Goods and provision of Services

    1. Unless stated otherwise in the order, the Customer is responsible (at its cost) for collecting the Goods for which there is an Accepted Order from Foam Sealant’s premises.
    2. Where Foam Sealant has agreed to deliver the Goods to the Customer’s premises, freight will be on the Customer’s account and added to the Price. The Customer will be responsible for communicating any change of address to the delivery premises prior to the expected delivery time. Foam Sealant will endeavour to discuss and agree the freight cost with the Customer before such amounts are incurred, except in circumstances where the Customer requests an urgent or expedited delivery in which case Foam Sealant will use all reasonable endeavours to obtain a competitive price for the freight.
    3. Delivery of the Goods is taken to occur at the time that:
      1. the Customer (or its nominee) takes possession of the Goods at Foam Sealant’s premises; or
      2. if the Goods are to be delivered to the Customer, at the time that the Goods leave Foam Sealant’s premises. (Delivery or Delivered).
    4. If the Customer is unable to take Delivery of the Goods as arranged, then Foam Sealant may deliver the Goods to a place of storage nominated by the Customer and, failing such nomination, to a place determined by Foam Sealant provided that such place is within reasonable proximity to the initial delivery point and provided that Foam Sealant notifies the Customer of such location. Such action shall be deemed to be Delivery to the Customer. The Customer shall be liable for all reasonable costs, charges and expenses incurred by Foam Sealant in connection with such action.
    5. Foam Sealant will use all commercially reasonable efforts to Deliver all Goods or provide all Services (as applicable) for which there is an Accepted Order by the date (if any) specified in the Accepted Order and in the absence of any date, within a reasonable time.
    6. The failure of Foam Sealant to Deliver the Goods or provide the Services by the date specified in the order does not entitle either party to treat an order or the Contract as repudiated.
    7. The Customer must still accept Delivery of the Goods or provision of Services even if after the estimated date and, except where Foam Sealant’s liability may not be excluded under the Australia Consumer Law, Foam Sealant will not be liable for any Loss incurred by the Customer as a result of the Delivery or provision of Services being after the estimated date, other than to refund any Price paid by the Customer where the Goods are not delivered at all / Services are not provided at all.
    8. The Customer must provide Foam Sealant and its Representatives with access to the Customer’s premises or any other location where the Services are to be provided. The Customer must ensure that it complies with all laws concerning occupational health & safety at such premises or site and must provide a safe working environment free from contamination and other hazardous materials to enable Foam Sealant to safely and effectively provide the Services. Foam Sealant may refuse to provide the Services or suspend the Services at any time if it determines, acting reasonably, that there is any risk of harm or danger to Foam Sealant or its Representatives, without liability. The Customer must comply with any reasonable direction or request provided by Foam Sealant or its Representatives concerning occupational health or safety at any premises on which the Services are provided.
  1. Risk

    1. Risk in the Goods passes from Foam Sealant to the Customer at the time the Goods are Delivered.
    2. The Customer must insure all Goods for their full replacement if they are sold on credit terms, until such time as the Customer has paid for the Goods in full.
    3. If any of the Goods are damaged or destroyed following Delivery but prior to title passing to the Customer, the Customer agrees to make an insurance claim in respect of any loss or damage caused to the Goods and pass through all insurance proceeds received to Foam Sealant. The production of these Terms by Foam Sealant is sufficient evidence of Foam Sealant’s right to receive the insurance proceeds without the need for any person dealing with Foam Sealant to make further enquiries.
    4. If the Customer requests that Foam Sealant leave any Goods outside Foam Sealant’s premises for collection or deliver the Goods to an unattended location, such Goods shall be left at the Customer’s sole risk. The Customer indemnifies Foam Sealant for any Loss suffered or incurred by Foam Sealant in connection with any request by the Customer to leave the Goods outside Foam Sealant’s premises for collection or to deliver the Goods to an unattended location.
  1. Title

    1. Foam Sealant and the Customer agree that title to Goods sold to the Customer on credit terms shall not pass to the Customer until the Customer has paid Foam Sealant all amounts payable for those Goods and any other money payable to Foam Sealant under these Terms.
    2. It is further agreed that, until ownership of the Goods sold on credit terms passes to the Customer in accordance with clause 7.1:
      1. the Customer is only a bailee of the Goods and must return the Goods to Foam Sealant on request;
      2. the Customer holds the benefit of the Customer’s insurance of the Goods on trust for Foam Sealant and must pay to Foam Sealant the proceeds of any insurance claim in the event of the Goods being lost, damaged or destroyed;
      3. the Customer must not sell, dispose of, deal with or otherwise part with possession of any Goods it purchases from Foam Sealant on credit terms subject to retention of title other than in the ordinary course of its ordinary business and for market value;
      4. the Customer:
      5. irrevocably authorises Foam Sealant to enter any premises where Foam Sealant believes the Goods are kept and recover possession of the Goods in circumstances where these Terms permit such recovery of possession; and
      6. undertakes to obtain all third party consents and authorisations necessary for Foam Sealant to do so;
      7. at any time Foam Sealant may recover possession of any Goods in transit to the Customer;
      8. the Customer must not grant or permit to exist:
      9. an encumbrance over the Goods (including any security interest for PPSA purposes) other than that in favour of Foam Sealant); or
      10. any third party interest in the Goods; and
      11. Foam Sealant may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
  1. Personal Property Securities Act 2009 (“PPSA”)

    1. In this clause 8, the expressions financing statement, financing change statement, security agreement, verification statement and security interest each have the meaning given to it in the PPSA and PPSR means the Personal Property Securities Register established under the PPSA.
    2. By agreeing to these Terms, the Customer acknowledges and agrees that these Terms, any terms set out in the Credit Application and each Accepted Order (including Goods sold on credit terms to the Customer) constitutes a security agreement for the purposes of the PPSA where a transaction contemplated by these Terms creates a security interest in the relevant Goods.
    3. The Customer undertakes to promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Foam Sealant may reasonably require to:
      1. prepare and register on the PPSR a financing statement or financing change statement in relation to a security interest granted by the Customer to Foam Sealant or give any notification in connection with such a security interest;
      2. correct a defect in a financing statement or a financing change statement referred to in clause 8.3(a);
      3. ensure any security interest granted by the Customer to Foam Sealant is at all times perfected, enforceable and has first ranking priority;
      4. enable Foam Sealant to exercise any of its rights or perform any of its obligations in connection with any security interest granted by the Customer to Foam Sealant; and
      5. indemnify, and upon demand reimburse, Foam Sealant for all expenses incurred in registering a financing statement or a financing change statement (including to release Goods from a security interest).
    4. The Customer waives their rights to receive notices under sections 95, 118, 121(4) and 130 of the PPSA.
    5. The Customer waives their rights as a grantor and/or a debtor under sections 132(3)(d), 132(4), 142 and 143 of the PPSA.
    6. Unless otherwise agreed to in writing by Foam Sealant, the Customer waives their right to receive any notice of verification statement in connection with any security interest in favour of Foam Sealant.
    7. Subject to the express provisions to the contrary in clauses 8.4 to 8.6 inclusive, nothing in these Terms is intended to have the effect of contracting out of any of the provisions the PPSA.
  1. Security and Charge

    1. In consideration of Foam Sealant agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these Terms (including, but not limited to, the payment of any money).
    2. The Customer indemnifies Foam Sealant from and against all Foam Sealant’s costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising Foam Sealant’s rights under this clause.
    3. The Customer irrevocably appoints Foam Sealant and each director of Foam Sealant as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Customer’s behalf.
  1. Defects & Limitation of Liability

    The Customer must inspect the Goods on Delivery and must within seven (7) Business Days of Delivery notify Foam Sealant in writing of any defect, damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow Foam Sealant to inspect the Goods.

    1. Limitation of liability – Non-Excludable Rights
      1. The Customer may have rights under the Australian Consumer Law or other rights in relation to the supply of Goods and/or provision of Services that cannot lawfully be excluded by Foam Sealant (Non-Excludable Rights).
      2. To the extent permitted by law, Foam Sealant’s liability in respect of any Non-Excludable Right is limited, in the case of Goods, to repair or replacement of the Goods or the cost of repairing or replacing the Goods, and in the case of Services, to supplying the Services again or paying the cost of having the Services resupplied.
    2. Limitation of liability – Other
      1. Except as expressly set out in these Terms or in respect of the Non- Excludable Rights, the liability of Foam Sealant to the Customer, whether arising under or in connection with these Terms or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort for negligence or otherwise, or on any other basis in law or equity is hereby:
      2. limited to the value of any express warranty or warranty card provided to the Customer by Foam Sealant (if any);
      3. limited to any warranty to which Foam Sealant is entitled, if Foam Sealant did not manufacture the Goods; and otherwise excluded absolutely.
      4. In addition, other than in respect of any Non-Excludable Right, Foam Sealant excludes all liability to the Customer for the loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss or for any special, indirect or consequential loss or damage.
      5. Subject to any rights the Customer may have in respect of Non-Excludable Rights, Foam Sealant shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
        1. the Customer failing to properly maintain or store any Goods;
        2. the Customer using the Goods for any purpose other than that for which they were designed or for which Foam Sealant represented that they could be used;
        3. the Customer continuing to use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; or
        4. the Customer failing to follow any instructions or guidelines provided by Foam Sealant.
  1. Returns

    1. Subject to any express warranty provided to the Customer in respect of the Goods and clause 10, returns of non- defective Goods will only be accepted by Foam Sealant where:
      1. the Customer has strictly followed any instructions provided by Foam Sealant regarding the return of the Goods;
      2. a copy of the invoice is enclosed with the returned Goods;
      3. the Goods are either returned at the Customer’s cost within 14 days of Delivery, of if Foam Sealant agrees, are collected by Foam Sealant;
      4. the Goods returned are of merchantable and reasonable quality on return;
      5. the Goods are returned in the condition in which they were delivered with all packaging material, brochures and instruction material in as new condition as is reasonably possible; and
      6. the Goods are not purpose built goods.
    2. Subject to any Non-excludable Rights the Customer has regarding the return of Goods, Foam Sealant may accept the returned goods, however, to cover Foam Sealant’s costs relating to returned Goods, Foam Sealant may require the Customer to pay any reasonable handling fees plus any freight costs.


  1. Intellectual Property

    1. Foam Sealant remains the owner or licensee (as the case may be) of all Intellectual Property Rights owned or used by Foam Sealant prior to the Contract and any other agreement with the Customer.
    2. The parties agree that any Intellectual Property Rights created or developed under or in connection with the Contract or in the course of supplying the Goods and/or Services (including any Intellectual Property Rights in Goods which are modified or updated or enhanced by Foam Sealant) are owned by Foam Sealant. For the avoidance of doubt, where Foam Sealant has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of Foam Sealant and may only be used by the Customer at Foam Sealant’s discretion.
    3. The Customer warrants that all designs, specifications or instructions given to Foam Sealant will not cause Foam Sealant to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify Foam Sealant against any action taken by a third party against Foam Sealant in respect of any such infringement.
    4. The Customer agrees that Foam Sealant may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which Foam Sealant has created for the Customer.
  1. Default and Consequences of Default

    1. Interest on an amount which is due for payment but is unpaid accrues daily (and will be capitalised monthly) from the date when the amount becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Foam Sealant’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
    2. If the Customer owes Foam Sealant any money the Customer shall indemnify Foam Sealant from and against all costs and disbursements incurred by Foam Sealant in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own Customer basis, Foam Sealant’s collection agency costs, and bank dishonour fees).
    3. Without prejudice to any other remedies Foam Sealant may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these Terms, Foam Sealant may suspend or terminate the supply of Goods or Services to the Customer. Foam Sealant will not be liable to the Customer for any Loss the Customer suffers because Foam Sealant has exercised its rights under this clause.
    4. Without prejudice to Foam Sealant’s other remedies at law, Foam Sealant shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled (including any Accepted Order involving Services to be rendered in the future) and all amounts owing to Foam Sealant shall, whether or not due for payment, become immediately payable if any amount payable to Foam Sealant becomes overdue by more than 14 days and the Customer has failed to remedy the non-payment despite being notified in writing by Foam Sealant, or in Foam Sealant’s reasonable opinion, the Customer will be unable to pay the amount when it falls due.
  1. Privacy Act 1988

    1. The Customer agrees for Foam Sealant to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by Foam Sealant.
    2. The Customer agrees that Foam Sealant may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
      1. to assess an application by the Customer;
      2. to notify other credit providers of a default by the Customer;
      3. to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
      4. to assess the creditworthiness of the Customer.
      5. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
      6. The Customer consents to Foam Sealant being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
      7. The Customer agrees that personal credit information provided may be used and retained by Foam Sealant for the following purposes (and for other purposes as shall be agreed between the Customer and Foam Sealant or required by law from time to time):
        1. provision of Goods;
        2. the marketing of Goods by Foam Sealant, its agents or distributors;
        3. analysing, verifying and/or checking the Customer’s credit, payment or status in relation to the provision of Goods;
        4. processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; or
        5. enabling the daily operation of Customer’s account or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
    3. Foam Sealant may give information about the Customer to a credit reporting agency for the following purposes:
      1. to obtain a consumer credit report about the Customer; or
      2. to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
    4. The information given to the credit reporting agency may include:
      1. personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
      2. details concerning the Customer’s application for credit or commercial credit and the amount requested;
      3. advice that Foam Sealant is a current credit provider to the Customer;
      4. advice of any overdue accounts, loan repayments or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
      5. that the Customer’s overdue accounts, loan repayments or any outstanding monies are no longer overdue in respect of any default that has been listed;
      6. information that, in the opinion of Foam Sealant, the Customer has committed a serious credit infringement (that is, has acted fraudulently or shown an intention not to comply with the Customer’s credit obligations);
      7. advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once; and
      8. that credit provided to the Customer by Foam Sealant has been paid or otherwise discharged.
  1. Termination

    1. Either party (Terminating Party) may immediately terminate any Contract on foot by written notice to the other party if the other party (Defaulting Party):
      1. breaches these Terms or the Contract in a material respect and, in the reasonable opinion of the Terminating Party, the breach:
      2. cannot be remedied; or
      3. can be remedied, but is not remedied by the Defaulting Party within 7 Business Days after the Terminating Party gives the Defaulting Party notice of the breach; or suffers an Insolvency Event.
    2. If a Contract is terminated in accordance with clause 15.1, the Customer must, within 7 Business Days after the date of termination:
      1. pay Foam Sealant all amounts owing to Foam Sealant as at the date of termination (including for the avoidance of doubt any amounts owing in arrears which have accrued but have not yet been paid); and
      2. return all Confidential Information to Foam Sealant.
    3. If a Contract is terminated in accordance with clause 15.1, Foam Sealant will have an immediate right to possession of all Goods sold on credit terms which have not been paid for, all amounts owing by the Customer in respect of the Goods, and any other amounts owing by the Customer to Foam Sealant (including any amounts owing for the provisions of Services) will become due and payable and must be paid by the Customer on demand by Foam Sealant. Further, Foam Sealant will be entitled (without prejudice to any other right or remedy provided under these Terms or otherwise) to suspend indefinitely all further deliveries of Goods and/or Services in respect of any Accepted Order, refuse to accept any future orders and cancel any credit facility provided to the customer.
  1. Indemnity

    1. The Customer indemnifies Foam Sealant and its Representatives against any Loss which Foam Sealant and/or its Representatives suffer, incur or are liable for in connection with:
      1. any negligent act or omission of the Customer or its Representatives;
      2. any breach of these Terms or a Contract by the Customer; or
      3. enforcing any security interest arising under a Contract.
    2. Foam Sealant holds the benefit of the indemnity in clause 16.1 on trust for its Representatives.
    3. The indemnity in clause 16.1 will not apply to the extent that any Loss is caused or contributed to by Foam Sealant’s negligence or wilful misconduct.
  1. Force majeure

    1. If there is any delay or failure in the supply or Delivery of Goods or provision of the Services by Foam Sealant due to weather, fire, labour dispute, strike, government direction or order, pandemic, epidemic or any other cause whatsoever beyond Foam Sealant’s reasonable control:
      1. Foam Sealant is not in breach of these Terms or any Contract by reason of that delay or failure;
      2. Foam Sealant’s obligation to supply or Deliver the Goods or provide the Services is suspended for the period of that delay or failure;
      3. if the delay or failure continues for in excess of 30 days, Foam Sealant may terminate any Contract by notice in writing to Customer; and
      4. Foam Sealant is not liable for any Loss incurred by the Customer by reason of such suspension or termination.
  1. Unpaid Foam Sealant Rights

    1. Where the Customer has left any item with Foam Sealant for repair, modification, exchange or for Foam Sealant to perform any other service in relation to the item and Foam Sealant has not received or been tendered the whole of any moneys owing to it by the Customer, Foam Sealant shall have, until all moneys owing to Foam Sealant are paid:
      1. a lien on the item; and
      2. the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
    2. The lien of Foam Sealant shall continue despite the commencement of proceedings, or judgment for any moneys owing to Foam Sealant having been obtained against the Customer.
  1. Building and Construction Industry Security of Payments Act 1999

    1. At Foam Sealant’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 2002 may apply.
    2. Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 2002 of Victoria, except to the extent permitted by that Act where applicable.
  1. GST

    1. If any supply by Foam Sealant to the Customer under or in connection with these Terms is subject to GST, the Customer must pay to Foam Sealant, in addition to the consideration for that supply (unless it expressly includes GST), an amount (additional amount) equal to the amount of the consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay the additional amount to Foam Sealant at the same time as the consideration for the supply is payable.
    2. In these Terms, the terms ‘tax invoice’, ‘GST’, and ‘GST exclusive market value’ have the respective meanings given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
  1. Disputes

    1. Any dispute relating to these Terms (Dispute) will be dealt with in accordance with this clause.
    2. The party claiming the Dispute will give notice of the Dispute to the other party which will include all facts on which that party relies in relation to that Dispute (Dispute Notice).
    3. Within five Business Days after service of a Dispute Notice, each of the parties’ Representatives will meet at least once to attempt, using their reasonable endeavours, to resolve the Dispute in good faith.
    4. If the Dispute has not been resolved within 15 Business Days after the service of the Dispute Notice, either party may start mediation by serving a written notice setting out the nature of the dispute, the proposed mediator, venue and attendees (Mediation Notice).
    5. Within 30 days of the Mediation Notice, the parties must use best endeavours to agree on the mediator, venue and attendees.
    6. If the parties cannot reach agreement about the mediator, either party may refer the matter to the Australian Disputes Centre for the appointment of a mediator.
    7. Each party must pay an equal share of the mediator’s fees and the mediation venue costs.
    8. Each party must be represented at the mediation by a person with authority to settle the dispute.
    9. Any information disclosed in connection with mediation remains confidential and is privileged from disclosure to third parties or in evidence, except to enforce a settlement agreement reached at the mediation.
    10. Any agreement reached at mediation will not be binding unless it is reduced to writing and signed by the parties.
    11. A party may not start court proceedings in relation to a Dispute until it has complied with the procedures in this clause, unless it commences legal proceedings to preserve any rights it may have.
    12. Nothing in this clause prevents a party seeking urgent injunctive or interlocutory relief.
    13. Notwithstanding the existence of a Dispute, both parties will continue to perform their respective obligations under these Terms.
  1. Confidential Information

    1. Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:
      1. as permitted under these Terms;
      2. with the prior written consent of the Discloser; or
      3. where the Recipient is compelled to do so by law, provided that it gives the other party written notice prior to disclosure.
    2. The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed and in connection with these Terms.
    3. The Recipient must:
      1. maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient from unauthorised access, use, copying or disclosure;
      2. notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of these conditions by the Recipient and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and
      3. reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by the Recipient.
  1. Trust

    If the Customer is the trustee of a trust:

    1. the Customer is bound by these Terms and grants any security interest (for PPSA purposes) in the Goods in its personal capacity and in its capacity as trustee of the trust;
      1. the Customer warrants that at all times while these Terms apply:
      2. all transactions it undertakes with Foam Sealant (including those under which security interests arise) pursuant to the terms of these Terms are permitted by the terms of the trust;
      3. it has the right to be fully indemnified out of trust property for obligations owed to Foam Sealant pursuant to the terms of these Terms and the trust property is sufficient to satisfy that right of indemnity and all other obligations for which it is entitled to be indemnified out of trust property; and
      4. no action has been taken or proposed to terminate the trust nor has any event for the vesting of trust property occurred; and
      5. the Customer agrees to notify Foam Sealant promptly whenever anything happens which would cause any of the warranties in clause 23.1.2 to be untrue.
  1. Partnership

    If the Customer is a partnership, its partners must:

    1. not do anything, or permit anything to be done or fail to do anything, which may affect or facilitate the variation or dissolution of the partnership;
    2. immediately notify Foam Sealant if the partnership is varied (including by a partner dying, leaving or joining the partnership) or dissolved; and
    3. if Foam Sealant so requests, use their best endeavours to ensure all partners of any successor partnership sign and deliver to Foam Sealant a document (in form and substance satisfactory to Foam Sealant) by which they agree the successor partnership is bound by these Terms and by which arrangements satisfactory to Foam Sealant are made for the performance by the successor partnership of any obligations outstanding to Foam Sealant at the time the partnership was varied or dissolved.
  1. Notices

    1. Any notice, demand, approval, request or other communication in relation to these Terms (Notice) will:
      1. be in writing in English;
      2. be marked for the attention of the Customer or Foam Sealant (as applicable); and
      3. be given at the recipient’s address by being:
      4. hand delivered;
      5. sent by email; or
      6. sent by prepaid post (or airmail if posted to or from a place outside Australia).
    2. A Notice is given if:
      1. hand delivered, on the date of delivery;
      2. sent by email, when the email (including any attachment) is sent to the receiving party at that email address, unless the sending party receives a notification of delivery failure within 24 hours of the email being sent;
      3. if sent by prepaid mail within Australia, at 9:00am on the sixth Business Day after the date of posting; or
      4. if sent by airmail, at 9:00am on the 12th Business Day after the date of posting.
    3. If a Notice is regarded as being given and received on a day that is not a Business Day or after 5:00pm on a Business Day, then the Notice will be deemed as given and received at 9:00am on the next Business Day.
  1. General

    1. The failure by Foam Sealant to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect Foam Sealant’s right to subsequently enforce that provision. If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
    2. These Terms shall be governed by the laws of the State of Victoria, and are subject to the jurisdiction of the courts in that State.
    3. Foam Sealant may assign or novate all or any part of its rights and obligations under these Terms without the Customer’s consent.
    4. The Customer must not without Foam Sealant’s prior written consent assign or novate all or any part of its rights and obligations under these Terms, for which consent will not be unreasonably withheld.
    5. Foam Sealant and the Customer acknowledge and agree that these Terms take precedence over all other conditions of supply of Goods and/or Services and applies to the exclusion of all other documents, prior discussions, representations, understandings and arrangements (written, or oral, express or implied) and other representations (contractual or otherwise), whether or not endorsed, delivered with or referred to in any order or other documents delivered by the Customer to Foam Sealant.
    6. The Customer agrees that Foam Sealant may amend these Terms on thirty 30 days’ notice and the altered Terms shall then:
      1. apply to orders placed by the Customer after such notice period has elapsed; and
      2. supersede all previous terms imposed by Foam Sealant regarding such orders.
    7. The Customer acknowledges and agrees that:
      1. it has satisfied itself that the Goods and/or Services are suitable for the Customer’s purposes;
      2. it has not entered into these Terms or any Contract in reliance upon any warranty or representation given by Foam Sealant in relation to the Goods and/or Services; and
      3. it has the power to enter into these Terms and each Contract and has obtained all necessary authorisations to allow it to do so.

27. Subcontracting

Foam Sealant may subcontract the provision of any part or whole of the Services to a related party, associate or third party