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:

They are (or state they are) an insolvent under administration or insolvent (each as defined in the
Corporations Act 2001 (Cth)); or
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
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
An application or order has been made (and, in the case of an application, it is not stayed, withdrawn or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
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
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
They are otherwise unable to pay their debts when they fall due; or
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:

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;
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;
Confidential information and trade secrets;
Trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos
and get-up; and
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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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

Products

Neoprene Tape Applications: Custom Sealing Solutions for Industry Professionals

Foam Sealant Trading Terms and Conditions

1. Definitions

Order and Acceptance

Change in Control

Price and Payment

Delivery of Goods and provision of Services

Risk

Title

Personal Property Securities Act 2009 (“PPSA”)

Security and Charge

Defects & Limitation of Liability

Returns

Intellectual Property

Default and Consequences of Default

Privacy Act 1988

Termination

Indemnity

Force majeure

Unpaid Foam Sealant Rights

Building and Construction Industry Security of Payments Act 1999

GST

Disputes

Confidential Information

Trust

Partnership

Notices

General

Subcontracting

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