GENERAL TERMS AND CONDITIONS OF SALE

1. APPLICABILITY OF THESE TERMS AND CONDITIONS AND INTERPRETATION

   1.1 These Terms and Conditions (“Terms & Conditions“) shall apply generally to the supply of all Goods sold and provided by the Supplier to its Customers.  The terms of any other written agreements between the Supplier and its Customers that are still in force will take precedence over these Terms & Conditions to the extent of any inconsistency.  For the avoidance of any doubt, the supply of Goods by the Supplier to its Credit Customers are governed by the terms and conditions of supply on credit that are agreed between the Supplier and Credit Customers set out in the Supplier’s written credit application documentation.

   1.2 In these Terms & Conditions:

   “Agreement” means each agreement between the Supplier and the Customer for the supply of Goods under these Terms & Conditions, such agreements coming about through the Customer’s acceptance of a Quotation or the Supplier’s acceptance of an Order.

   “Credit Customer” means a Customer that has an account with the Supplier for the supply of Goods by the Supplier on credit terms.

   “Customer” means any purchaser of any Goods from the Supplier.

   “Goods” means goods supplied or to be supplied by the Supplier to the Customer including goods manufactured or modified by the Supplier at the Customer’s request and the term Goods also includes any services provided by the Supplier to the Customer ancillary to and associated with the supply of goods.

   “Moneys” means all moneys now or in the future actually or contingently owing by the Customer to the Supplier and includes any part of those moneys and includes all interest accruals and costs, expenses, and disbursements.

   “PPSA” means the Personal Property Securities Act 2009 (Cth).

   “Supplier” means and includes: National Plastics Group Pty Ltd ACN 104 778 930; Tanks R US Australia Pty Ltd ACN 112 089 362; Agricultural Products of Australia Pty Ltd ACN 113 399 214; National Barriers Australia Pty Ltd ACN 113 399 241; Barrier Systems Australia Pty Ltd ACN 113 399 223; Barrier Systems International Pty Ltd ACN 113 399 232; Rotacast Plastics Pty Ltd ACN 113 399 250; and National Polymers Pty Ltd ACN 129 437 903, being the companies in the National Plastics Group and means each of them jointly and severally.

   1.3 If the Customer is comprised of more than one person then “Customer” means those persons collectively and each of them individually and the obligations and liabilities on the part of the Customer in these Terms & Conditions bind all of them jointly and each of them severally.

   1.4 A reference to the singular includes the plural and vice versa;

   1.5 A reference to one gender denotes the relevant gender;

   1.6 A person denotes an individual or corporation or other legal entity as applicable.

2. QUOTATIONS

   2.1 If the Supplier has provided any quotation in respect of specific Goods (“Quotation“):

   2.1.1.these Terms & Conditions shall apply to the Quotation;

   2.1.2 the price in the Quotation shall be the Supplier’s current price as at the date of the Quotation;

   2.1.3 where possible, the Supplier will endeavour to detail any charges for delivery of the Goods or other charges in the Quotation;

   2.1.4 the Quotation shall express the period of time after issue of the Quotation that it will remain valid for acceptance by the Customer;

   2.1.5 if a deposit for Goods is required details will appear in the Quotation.

3. ORDERS

   If the Customer has made an order for Goods without there being a Quotation provided by the Supplier (“Order“):

   3.1.1   the Order is subject to acceptance in writing by the Supplier; and

   3.1.2   the price actually payable for the Goods is the Supplier’s current price as at the date of the Supplier’s acceptance of the Order; and

   3.1.3   the Supplier may require the Customer to pay a deposit in respect of any Order and any acceptance by the Supplier of any Order is subject to the Customer paying any required deposit. The details of any required deposit will be provided by the Supplier to the Customer in writing.

4. VARIATION OR CANCELLATION

   4.1 After the Customer’s acceptance of a Quotation or the Supplier’s acceptance of an Order:

   4.1.1  no change in the specification of Goods shall bind the Supplier, unless the Supplier expressly agrees to the change in writing; and

   4.1.2  if the Customer cancels the Order or Quotation after acceptance, the Customer will reimburse the Supplier for any loss, damage or expenses incurred by the Supplier in relation to the supply or proposed supply of the Goods. For the avoidance of any doubt, cancellations will be accepted by the Supplier at no charge only if manufacture of the Goods has not commenced.

5. PAYMENT

   5.1 Unless otherwise expressly stated, the price of Goods excludes all freight, transportation, shipping, insurance, packing, crating or casing, storage, handling, demurrage, delivery, export and similar charges, and all sales, GST, excise or other taxes, and the Customer shall pay and indemnify the Supplier for those charges or taxes. If the Supplier expressly agrees in writing that the price includes any of such charges or taxes, the price is subject to adjustment for increases in any of those charges or taxes after the date of the Quotation or acceptance of the Order.

   5.2 The Customer shall pay all taxes, levies, duties and assessments of every nature due in connection with the Goods supplied and hereby indemnifies and holds harmless the Supplier from any liability on account of any and all such taxes, levies, duties, assessments and deductions.

   5.3 The Customer shall pay for Goods by the time specified by the Supplier and, unless otherwise agreed in writing by the Supplier, must also pay any applicable charges and taxes associated with the Goods (as referred to in clauses 5.1 and 5.2 herein) by that time. Unless otherwise agreed in writing, the Customer must pay in full all such monies in respect of Goods before being entitled to collect, receive or otherwise take possession of the Goods.

   5.4 If, for any reason not attributable to the Supplier, any Moneys are not paid by the Customer for Goods by the due date for payment or are otherwise overdue, the Customer is liable to pay to the Supplier interest on all such overdue Moneys at the rate of 12% per annum calculated on daily balances of overdue Moneys.

   5.5 The Supplier is entitled to recover from the Customer, in addition to the price of Goods, all losses, expenses, disbursements and costs (including legal fees) on a full indemnity basis, consequent upon the Spplier seeking to execute or enforce a right under these Terms & Conditions due to breach by the Customer, and all such amounts are recoverable from the Customer by the Supplier as a liquidated debt.5.2 The Customer shall pay all taxes, levies, duties and assessments of every nature due in connection with the Goods supplied and hereby indemnifies and holds harmless the Supplier from any liability on account of any and all such taxes, levies, duties, assessments and deductions.

6. DELIVERY/COLLECTION/INSTALLATION

   6.1The Customer must elect to either have the Goods delivered (“Delivery Order”) or to collect the Goods from the Supplier (“Collection Order”):

   6.2 While the Supplier shall use reasonable endeavours to carry out its obligations under each Agreement for the supply of Goods as soon as reasonably practicable, any delivery or collection dates and times, and any usual manufacturing times, made known to the Customer by the Supplier are estimates only. If any such estimates are not met for a reasonable time (a “reasonable time” not exceeding 28 days) or for reasons outside the control of the Supplier, the Customer will remain bound by the terms of the Agreement.

   6.3 Delivery may be carried out in instalments. Each instalment will be treated as a separate delivery with the price being apportioned in accordance with the proportion of Goods delivered.

   6.4 DELIVERY ORDERS

Delivery of Goods to the Customer occurs when they are dispatched from the Supplier’s premises. The Supplier reserves the right to make and/or approve any arrangements regarding the transportation of the Goods from the Supplier to the Customer, and nominate the transportation service to be used. Additional fees, as specified by the Supplier in a Quotation or otherwise, may be charged by the Supplier for the packaging, transportation and installation of the Goods. The Goods will be dispatched to an address or addresses nominated by the Customer. If the Customer is not present at the specified address for delivery and/or has not made or complied with arrangements for the receipt of delivery of Goods, then the Supplier will be entitled to charge and the Customer must pay for any additional costs associated with redelivery of the Goods.

6.5 COLLECTION ORDERS

Delivery of Goods to the Customer occurs when the Customer takes possession of the Goods. A packaging fee will be charged where the Supplier’s wrapping or packaging is required. The Supplier will notify the Customer as soon as Goods are ready for collection. Within seven (7) days of receiving notification that Goods are ready for collection pursuant to this clause, the Customer must remove the Goods from the Supplier’s premises.

7. RETENTION OF TITLE

   7.1 The Goods shall be at the sole risk of the Customer as soon as delivery occurs pursuant to clause 6. Property and Title to the Goods shall remain with the Supplier and will not pass to the Customer until those Goods and all other amounts owed to the Supplier by the Customer have been paid for in full. If payment in full is not made pursuant to clause 5, the Supplier shall have the right, with or without prior notice, to recover possession of the whole or any part of the Goods (and the Customer agrees that the Supplier may enter any premises occupied by the Customer to satisfy that purpose) without prejudice to other rights and remedies.

   7.2 Until all amounts owed to the Supplier by the Customer have been paid for in full:-

   7.2.1 the Customer will hold the Goods as a fiduciary and bailee for the Supplier;

   7.2.2 the Customer will not encumber or dispose of the Goods;

   7.2.3 the Goods must be stored separately and in a manner enabling them to be identified as Goods of the Supplier and cross-referenced to particular invoices and the Customer acknowledges that if it should incorporate the Goods with other products or items of the Customer then any such resulting products will become and be deemed to be the sole property of the Supplier and if the Goods are incorporated the Goods with the property of a party other than the Customer, then the resultant product become and be deemed to be owned in common by the Supplier and the other party on a pro-rata basis to be calculated by reference to the cost to the Customer of the incorporated materials;

   7.2.4 the Customer may sell the Goods in the ordinary course of its business as bailee for the Supplier and will hold the proceeds of sale in a separate account on trust for the Supplier and account to the Supplier for those proceeds; and

   7.2.5 the Supplier may require the Customer to return the Goods to it on demand and may enter upon the premises of the Customer to inspect or repossess the Goods.

7.3 Despite clauses 1 and 7.2 the Supplier will be entitled to maintain an action against the Customer for the purchase price of the Goods.

7.4 To avoid any doubt, for the purposes of the PPSA, it is the intention of the parties by this clause 7 that there is created for the benefit of the Supplier a Purchase Money Security interest in the Goods.

7.5 The Customer agrees that the Supplier may register any personal property security interest created by the Terms & Conditions on the Personal Property Securities Register and the Customer waives its rights to receive a verification statement (as that term is defined in the PPSA) in respect of any financing statement or financing change statement (as those terms are defined in the PPSA) registered by the Supplier in respect of any personal property of the Customer. The parties agree that, insofar as the provisions of Chapter 4 of the PPSA are for the benefit of the Customer or place an obligation on the Supplier, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that the Supplier otherwise agrees in writing.

8. TERMINATION

   8.1 Without limiting the generality of any other clause in these Terms & Conditions, the Supplier may terminate any Agreement for the supply of Goods immediately by notice in writing if: the Customer is in breach of any term of these Terms & Conditions; the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; the Customer, being a natural person, dies; or the Customer ceases or threatens to cease conducting its business in the normal manner.

   8.2 If notice is given to the Customer pursuant to clause 1, the Supplier, in addition to terminating the Agreement: may repossess any Goods if payment in respect of those Goods is not complete; is entitled to charge the Customer for the value of the work completed by the Supplier up to the date of termination and may retain any moneys already paid by the Customer for any such work; shall be regarded as discharged from any further obligations under these Terms & Conditions; and may pursue any additional or alternative remedies provided by law.

9. INDEMNITY

   9.1 Subject to clause 1, the Customer indemnifies, on a continuing basis and on a full indemnity basis, the Supplier from and against any liability, loss, expense or demand for or arising from: any false, misleading, deceptive or misdescriptive representation or statement made by the Customer in respect of the Goods to any person; any improper use or mismanagement of the Goods by the Customer; any use of the Goods in a manner not reasonably contemplated by the Supplier; any modification of the Goods not authorised by the Supplier; any use of the Goods in a manner contrary to law; any subjection of the Goods to unusual or unrecommended physical or environmental stress; the Customer’s failure to comply with any terms of these Terms & Conditions; or the Customer’s failure or refusal to adopt any recommendations of the Supplier in relation to the Goods.

   9.2 This indemnity survives termination of any Agreement by either party for any reason.

10. RELIANCE AND WARRANTIES

    10.1 The Customer hereby acknowledges that, in deciding to enter into any Agreement, the Customer has not relied in any way on the Supplier’s skill or judgement and that the Customer has satisfied itself as to the condition and suitability of the Goods and their fitness for the Customer’s purposes, and does not rely on any representation, warranty or other term made by or on behalf of the Supplier which is not set out in the Agreement or in any data sheets or specification documentation published by the Supplier in respect of any of the Goods.

    10.2 The Customer will, prior to the acceptance of the Goods by the Customer, examine the Goods and satisfy itself as to their compliance with any relevant specifications as well as their condition, suitability and fitness.

    10.3 Subject to clause 1, if the Goods are second-hand goods then the Customer acknowledges that the Goods are second-hand, and that fitness for purpose and suitability may be affected due to the second-hand condition of the Goods.

11. DEFECTS

    11.1 Within ten (10) business days after receipt of the Goods the Customer shall complete any inspection or testing required by it to confirm the Goods comply with any Quotation, Order or specifications in respect of any of the Goods and notify the Supplier in writing of the extent to which the Goods do not comply with any applicable Quotation, Order or specifications.

    11.2  The Customer shall not use the Goods (other than to the extent reasonably necessary for inspection and testing) before the Customer completes inspection and testing and satisfies itself that the Goods comply with any Quotation, Order or specifications, and, if the Customer notifies the Supplier in writing that the Goods and Services do not comply with any Quotation, Order or specifications, until the Supplier has had a reasonable opportunity to inspect and test the Goods after the Supplier receives that notice.

    11.3  Subject to clause 12, if the Customer does not comply with clauses 11.1 or 11.2, the Customer shall be taken to have unconditionally accepted the Goods.

12. LIABILITY OF THE SUPPLIER

    12.1 Nothing in these Terms & Conditions is intended to exclude, restrict or modify rights which the Customer may have under the Australian Consumer Law (ACL) or any other legislation which may not be excluded, restricted or modified by agreement. If under any law, any terms which apply to the supply of Goods under these Terms & Conditions cannot legally be excluded, restricted or modified then those terms apply to the extent required by that law. All terms which would otherwise be implied are excluded except as stated in these Terms & Conditions.

    12.2 Subject to clause 12.4, to the extent permitted by law, the Supplier’s sole liability for any breach of any term is limited:-

    12.2.1 in the case of goods supplied by the Supplier, to any one of the following as determined by the Supplier:-

    12.2.1.1 the replacement of the goods or supply of equivalent goods;

    12.2.1.2 the repair of the goods;

    12.2.1.3 the payment of the cost of replacing the goods or acquiring equivalent goods;

    12.2.1.4 the payment of the cost of having the goods repaired;

12.3 in the case of services supplied by the Supplier, to the supply of the services again, or to the payment of the cost of having the services supplied again.

12.4 Subject to clauses 2 and 12.4, the Supplier is not liable for any damage, economic loss or loss of profits whether direct, indirect, general, special or consequential arising out of a breach of an implied or expressed term, or suffered as a result of the negligence of the Supplier or its employees or agents.

12.5 If the Customer is a Consumer (“Consumer” has the meaning defined in Section 3 of the Australian Consumer Law at Schedule 2 of Competition and Consumer Act 2010) the Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is 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.

13. GENERAL

    13.1 In the event that the whole or any part or parts of any clause in this Agreement is found to be unenforceable by a Court then such clause or part thereof shall be to that extent severed from these Terms & Conditions without effect to the validity and enforceability of the remainder of these Terms & Conditions.

    13.2 The Supplier’s failure to exercise any right under the Terms & Conditions or to insist on strict performance of any part of the Terms & Conditions does not operate as a waiver and a partial exercise of a right does not preclude any further or fuller exercise of that right.

    13.3 These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of Queensland. The parties submit to the exclusive jurisdiction of the Courts in Brisbane and agree that proceedings may be commenced in any court in Brisbane and consent to that court having jurisdiction by virtue of this Clause notwithstanding that the court would not have such jurisdiction without this consent.

    13.4 Notice required to be given by the Customer to the Supplier pursuant to these Terms & Conditions may be delivered personally or sent by post to the credit manager of the Supplier at the Supplier’s postal address at 5 Christensen Road, Stapylton 4207 or PO Box 1049, Cleveland QLD 4163 and unless the contrary is proved shall be taken as delivered when received by the Supplier. Notice to be given to the Customer by the Supplier may be delivered personally or sent by post to the Customer’s last known address and shall be taken as delivered on the second business day following posting or may be sent by email to the Customer’s last known email address and shall be taken as delivered on the business day following sending of the email.

    13.5 These Terms & Conditions, in respect of any Agreement, constitute the entire terms and conditions of agreement between the Parties and supersedes all prior representations, agreements, statements and understandings in relation to the Agreement unless they have been approved in writing by the Supplier.