A binding "security agreement" (for the purposes of the Personal Property Securities Act 2009 (Cth) ["PPSA"]) which incorporates the Offer Terms [the "Security Agreement"] shall be deemed to have been formed between HotnCool and the Customer on and from the earliest of the following events: (i) written communication of acceptance of this Application by or on behalf of HotnCool; (ii) registration of the Security Agreement on the Personal Property Securities Register ["PPSR"]; or (iii) provision of credit to the Customer by HotnCool. The Customer ALSO AGREES that the Security Agreement creates for HotnCool a security interest in respect of all goods, services and/or any other property of any kind supplied by HotnCool to the Customer whether present or after acquired for the purposes of the PPSA [the "Security Interest"], that PPSA Sections 125, 130, 132(3)(d), 132(4), 135 & 157 shall not apply to the Security Interest and that this Application may be produced by HotnCool at any time and from time to time as evidence of the Customer’s unconditional and irrecoverable consent to the creation of the Security Interest and registration of the Security Interest on the PPSR. The Customer AGREES that notwithstanding items 3. & 4. above HotnCool shall be entitled to vary its terms for the provision of credit and/or withdraw the provision of credit altogether in the exercise of HotnCool’s unfettered and absolute discretion at any time and from time to time.

The Customer hereby WARRANTS and DECLARES that he/she/it is solvent and has the present and future ability to pay all debts as and when all debts fall due.

The Customer hereby WARRANTS and DECLARES that all goods and/or services supplied by HotnCool shall be used by the Customer predominately for commercial and/or business purposes (and not for any personal, domestic and/or household purpose).

The Customer ALSO AGREES that while this Application relates to all dealings with HotnCool any and all obligations of HotnCool shall in each instance be limited to the legal entity which invoices the Customer.

The Customer in its own right and on behalf of any interested person(s) HEREBY CONSENTS to HotnCool (subject to its obligations under the Privacy Act 1988 (Cth)) at any time collecting, using and/or disclosing commercial and/or consumer information about the Customer and/or any interested person(s): (i) which relates to but is not limited to identity, credit history and/or solvency; (ii) for the purpose(s) of assessing creditworthiness, risk and/or solvency and/or enforcing any of HotnCool’s rights; and/or (iii) by arrangement with any authorised agent(s), credit provider(s) and/or reporting service(s) and the like (including any banker(s), the ASIC, ITSA etc.). HotnCool may refuse to grant credit if any information to which it is entitled is inaccurate or not provided and otherwise agrees to allow the Customer access to all such information. This Application may be produced as conclusive evidence of such consent.

Please note that upon submission of this application you will be emailed a Guarantee, Indemnity and Charge agreement that must be completed and returned before your application can be processed.

To the fullest extent legally permissible all dealings between the customer (including all related and/or associated companies and/or other entities, all successors and/or assigns and in its own capacity and as trustee of each and every trust of which it is trustee) [jointly “the Customer”] and HotnCool Australia Pty Ltd ACN 008 761 573 (and/or any related and/or associated companies, trusts and/or other entities and/or any successors and/or assigns) whether trading as “HotnCool Australia” and/or otherwise [“HotnCool”] relating to any goods and/or services [the “goods” and/or the “services”] are subject to the following terms and conditions [“these Terms”] unless otherwise expressly agreed in writing:

1. Payment: a) Payment shall be made by cash, cheque, bank cheque or EFTPOS, without deduction and within thirty (30) days from the end of the month of purchase, or unless otherwise agreed in writing. b) The Customer agrees to pay an administration fee of 2.5% (or as otherwise nominated by HotnCool) as the liquidated processing cost on credit card payments and/or on payments made outside the credit period stipulated in each invoice or statement.
2. Interest: HotnCool shall be entitled to charge interest on overdue accounts at 1.25% per month until paid in full.
3. Property: a) The Customer agrees that these Terms constitute a “security agreement” for the purposes of the Personal Property Securities Act 2009 (Cth) [“PPSA”], that HotnCool has and/or will have a “security interest” in respect of all goods and/or services whether present or after acquired for the purposes of the PPSA and that PPSA Sections 125, 130, 132(3)(d), 132(4), 135 & 157 shall not apply to any such security interest b) Property in goods shall not pass until payment in full of all monies owed by the Customer. c) HotnCool reserves the right to take possession and dispose of goods as it sees fit at any time until full payment. The Customer grants permission to HotnCool to enter any property where any goods are stored with force if necessary. d) Immediately on delivery the Customer accepts liability for the safe custody of goods and indemnifies HotnCool for any related losses. e) On sale or disposition of any goods prior to full payment the Customer agrees to deposit all proceeds in a separate bank account and to not mix proceeds with any other monies and shall forthwith account to HotnCool notwithstanding that HotnCool may have granted any credit facility and/or time to pay. f) Until payment in full the Customer agrees: (i) to keep all goods unpaid for as fiduciary for HotnCool and store all goods in a manner which shows HotnCool as owner; (ii) to only sell goods in the usual course of its business on the basis that all proceeds are held in trust for HotnCool; and (iii) that sale on terms, for less than cost and/or to a related entity of the Customer shall not be “in the usual course”. g) Without derogating from any rights of HotnCool as a creditor or under these Terms if goods are used in any construction, fabrication, manufacturing and/or other process [“the Process”] which results in an entitlement of the Customer to receive money from any other person the Customer agrees to hold such part of any monies received by the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any goods used in the Process as invoiced to the Customer by HotnCool UPON TRUST for HotnCool until payment in full for those goods and all monies owed to HotnCool. h) Nothing in this clause is intended to create a charge and this clause shall be read down to the extent necessary to avoid creating any charge. i) The Customer agrees a certificate signed by an officer of HotnCool and stating certain facts for the purposes of this clause shall be conclusive evidence of each fact stated. j) HotnCool is not obliged to accept the return of goods.
4. Consumer Guarantees & ACL: The Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010 (Cth) [“ACL”] provides consumers with certain consumer guarantees and rights in relation to certain transactions concerning goods and/or services (see www.consumerlaw.gov.au). Any rights the Customer may have under the ACL shall apply notwithstanding any inconsistent provisions in these Terms which shall be read down to the extent necessary to comply with the ACL and which shall otherwise apply to the fullest extent legally permissible.
5. Warranty: a) All goods are sold subject to any applicable manufacturer’s warranty, for a period of 12 months; b) HotnCool may satisfy any valid warranty claim by replacing or repairing the goods at its election; c) any warranty shall run from the date of original purchase and not be extended by any replacement or repair; d) the failure of a product during a warranty period does not automatically constitute a warranty claim; e) HotnCool Australia Pty Ltd will not be liable for incorrect application or poor work practices installing and commissioning the product; f) consequential damages, labour and loss of refrigerant are not covered by warranty; and g) all claims will be assessed by HotnCool Australia Pty Ltd or the manufacturer.
6. Limitation of Liability: To the extent permitted by the ACL: a) the Customer agrees to limit any claim to the replacement/repair of the goods (or cost thereof) and/or re-supply of services (or cost thereof); b) HotnCool shall not be liable for: (i) any claim, loss or expense which is made after 30 days from the date of delivery of goods and/or services – after which there shall be deemed to have been unqualified acceptance; (ii) any consequential loss and/or any special and/or punitive damages through any fault of HotnCool or otherwise; and/or (iii) any claim in any way caused and/or contributed to by the Customer and/or any third party.
7. Cancellations and Returns: The Customer agrees: a) not to cancel any order without HotnCool’s prior approval; b) not to return goods without HotnCool’s prior approval, if goods are not in brand new and unused condition with undamaged packaging and/or if 3 weeks or more have passed since delivery; c) that HotnCool may take back goods in saleable condition on such terms as HotnCool considers to be reasonable; d) to pay HotnCool on request a restocking fee of 15% of the gross invoice value of all returns; e) not to return goods without first providing HotnCool an original invoice as proof of purchase; and f) not to return any goods which have been custom made, custom processed or custom acquired.
8. Quotations: The Customer agrees that: a) quotations must be in writing; b) HotnCool shall not be bound by any quotation if an order is not placed within 30 days from the date of quotation; c) HotnCool may prior to receipt of any order amend any quotation and notify the Customer accordingly without ramification; d) HotnCool shall not be bound by any quotation if it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and if HotnCool also forms the view that those circumstances have substantially and/or materially changed; e) the Customer shall pay any additional charges HotnCool levies for holding any goods referred to in any quotation pending placement of an order.
9. Placement of Orders: The Customer agrees that: a) if any dispute arises concerning any order (including any question of identity, authority or any phone, fax or computer generated order) the internal records of HotnCool shall be conclusive evidence of what was ordered; b) each order placed shall be and be deemed to be a representation by the Customer made at the time that it is solvent and able to pay all of its debts as and when they fall due; c) when placing any order the Customer shall inform HotnCool of any facts which might reasonably affect acceptance of the order by HotnCool and/or any grant of credit and any failure to do so by or on behalf of the Customer shall be deemed to create an inequality of bargaining position, be deemed to constitute the taking of an unfair advantage of HotnCool and to be unconscionable, misleading and deceptive.
10. Supply and Delivery: a) HotnCool may supply by installments and/or withhold or cancel supply without ramification where: (i) HotnCool has insufficient goods to fulfill orders; (ii) goods are not available to supply; (iii) the Customer is in breach of these Terms; (iv) HotnCool has any safety concerns; and/or (v) HotnCool considers it appropriate whether because of any minimum invoice policy or otherwise. b) The Customer agrees that: (i) HotnCool may elect to arrange delivery at its discretion and without any liability and at the cost and responsibility of the Customer in all things; (ii) the Customer shall be deemed to have accepted delivery and liability for goods on being notified by HotnCool that goods are ready for collection and/or on goods being delivered to a carrier or to the Customer’s business premises or nominated site whether attended or not; (iii) a certificate purporting to be signed by an officer of HotnCool confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket; and (iv) HotnCool shall not be liable for delay, failure or inability to deliver any goods. c) The Customer agrees: (i) to pay for so much of any forward order as HotnCool invoices from time to time; (ii) that no delay or failure to fulfill any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment; (iii) to pay HotnCool for any demurrage or other costs and expenses in handling and/or holding any goods once ready for delivery and/or collection; and (iv) HotnCool may supply an excess or deficiency of goods up to 5% of the volume or weight of the amount ordered and the Customer shall pay for the amount so supplied and shall not make any claim against HotnCool for the amount over or under supplied.
11. Purchase Price: a) In the absence of a binding quotation all sales are made at the price nominated by HotnCool at the time of delivery. b) All government imposts, levies and duties (including any GST or equivalent) shall be to the Customer’s account. c) Prices exclude government imposts, levies and duties (including any GST or equivalent).
12. Variations: To be binding any variation or cancellation of these Terms or any order must be approved by HotnCool in writing.
13. Exclusions: To the extent permitted by the ACL: a) no dealing between HotnCool and the Customer shall be or be deemed to be a sale by sample; b) The Customer shall rely on its own knowledge and expertise in selecting any goods and/or services for any purpose and any advice and/or assistance given by or for HotnCool shall be at the Customer’s risk and shall not be or be deemed to be given as expert or adviser nor to have been relied on by the Customer or anyone claiming through the Customer; c) all goods are sold subject to all applicable trading terms, warranties and representations of the manufacturer; d) HotnCool shall not be responsible nor liable for paying and/or obtaining any necessary judicial, statutory, government and/or utility fees, expenses, orders, approvals, permits and/or licences; e) HotnCool shall not be liable for any goods and/or services: (i) made or performed to designs, drawings, specifications and/or procedures etc. and/or with materials which are provided and/or approved (whether fully or in part) by or on behalf of the Customer; (ii) utilised, stored, handled and/or maintained incorrectly or inappropriately; and/or (iii) manufactured and/or supplied by any other party; f) the Customer agrees to: (i) check all goods for compliance with all applicable laws, standards and/or guidelines before use, on-sale and/or application; (ii) comply with all applicable laws, standards and/or guidelines and with all recommendations and/or directions made and/or given by HotnCool and/or by any manufacturer; and (iii) act in accordance with good practice at all times.
14. Default: a) On default or breach of any part of these Terms by the Customer the full balance of all unpaid monies shall be deemed by this clause to be immediately due and payable (save to the extent that HotnCool expressly directs otherwise in writing) and HotnCool may inter alia terminate any contract, retain all monies paid, cease further deliveries and/or provision of services, recover all lost profits and/or at its discretion take immediate possession of any goods not paid for without prejudice to any other rights and without being liable in any way to any party. b) The Customer agrees not to commence or continue or permit to be commenced or continued through it any suit or HotnCool against HotnCool while the Customer is in default under any part of these Terms or in any of its dealings with HotnCool. c) The Customer agrees to indemnify HotnCool for all fees and expenses payable to solicitors, mercantile (including collection) agents and other parties acting on behalf of HotnCool in respect of anything instituted or being considered against the Customer whether for debt, possession of any goods or otherwise (including without limitation all legal costs on an indemnity basis, collection costs, and debt recovery fees). d) HotnCool may apply any payment in reduction of fees, interest and/or any principal debt in such order of priority as HotnCool in its discretion deems appropriate. e) The Customer irrevocably authorises the payment directly to HotnCool of any debt due to the Customer by any debtor of the Customer in reduction of any amount due to HotnCool under these Terms or otherwise.
15. Indemnity: The Customer fully indemnifies HotnCool against any claim or loss arising from or related in any way to any dealing between HotnCool and the Customer and/or arising under these Terms.
16. Intellectual Property: The Customer agrees that all intellectual property in the creation of any goods and/or services shall be and remain the property of HotnCool notwithstanding any contribution by the Customer.
17. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon HotnCool shall apply.
18. Reconditioned Goods: HotnCool shall not be liable for any reconditioning and/or repair of products made and/or supplied by the Customer and/or by any third party.
19. Customer Restructure: The Customer shall notify HotnCool in writing of any change in its structure or management including any change in director, shareholder and/or management and/or any change in partnership and/or trusteeship within 7 days of each change. Until such notice is received the Customer guarantees the performance of all obligations passing to any third party and fully indemnifies HotnCool against all loss (including legal costs on an indemnity basis).
20. Jurisdiction: The parties agree that these Terms, and any claim or dispute arising from these Terms, shall be governed by the law applicable in the State nominated at item 10 in the Application and the Customer agrees to submit to the non-exclusive jurisdiction of the Court’s in that State. If no State is nominated then Western Australia shall be deemed to be the nominated State.
21. Credit Limit: Any credit facility or credit limit is an indication only of the intention of HotnCool at the time. HotnCool may vary or withdraw credit at any time at its discretion and without any liability to the Customer or any other party. Upon breach of any of these Terms, the whole of the monies owing by the Customer shall become immediately due and payable.
22. Waiver: An election by HotnCool not to exercise any of its rights on any breach of these Terms shall not constitute a waiver of any rights relating to any other breach.
23. Notice: The Customer agrees that it shall be deemed to have notice of any change to these Terms immediately any change is adopted by HotnCool and whether or not the Customer has actual notice.
24. Security For Payment: The Customer hereby grants to HotnCool a general lien over all property of the Customer until payment in full of all monies owing to HotnCool.
25. Force Majeure: HotnCool shall not be in default or in breach of any contract with the Customer as a result of Force Majeure including any strike or lock-out.
26. Insolvency: The Customer shall be in default of these Terms if it commits an act of insolvency, appoints an insolvency practitioner and/or calls a formal meeting of creditors.
27. Cylinders: The Customer agrees: a) all gas cylinders remain the property of HotnCool unless sold (subject to clause 3 above) to the Customer, in which case all liability, responsibility and regulatory requirements lay solely with the Customer; b) on request to return cylinders to HotnCool; c) to comply with all regulatory requirements in use and ownership of the cylinders; and d) to indemnify HotnCool for the full replacement cost of any cylinders not returned or damaged and against any liability arising from misuse or non-compliance with any regulations.
28. Severability: Any part of these Terms shall be capable of severance without affecting any other part of these Terms.
29. Set-off: All payments required to be made by the Customer under these Terms will be made free of any setoff, or counterclaim, or without deduction or withholding. Any amounts due to HotnCool from time to time may be deducted from any amounts which may be or may become payable to the Customer by HotnCool.
30. Entire Agreement: The Offer Terms, including these Terms, constitute the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of the Offer Terms are merged in the Offer Terms and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of the Offer Terms or constitutes any collateral agreement, warranty or understanding.