These Online Sale Terms and Conditions (the “Online Sale Terms”) are entered into and shall constitute a binding agreement by and between Total Tank Solutions t/a Kleentek, a company duly incorporated under the laws of Queensland, Australia, with registered address at 10/100 Sugar Road Maroochydore QLD, Australia, 455 (“Kleentek”, “we”, “our”, or “us”) and the buyer of goods (“you” or “Buyer”) from our online shop, available on our website http://kleentek.net.au/ (the “Online Shop” and the “Website”, respectively).
You may access our Online Shop and purchase the Goods (as defined below) in accordance with the terms and conditions set forth hereunder.
- Acceptance of the Terms
IF YOU DO NOT AGREE TO THESE TERMS, PLEASE DO NOT PURCHASE ANY GOODS FROM KLEENTEK VIA THE ONLINE SHOP.
By accepting these Terms, you represent that any and all information you provide us is true and accurate. The provision of any false or fraudulent information is strictly prohibited.
- Account Registration
The Online Shop lists the various ultrasonic cleaners, industrial washing machines, chemicals, cartridges and other equipment and consumables (collectively, the “Goods”) owned, manufactured and/or distributed by Kleentek, which are made available for purchase by you via the Online Shop. In order to purchase Goods via the Online Shop, you may elect to register and open an account on our Website (the “Account”). To open an Account, you must provide us with your first name, last name, e-mail address, company name, telephone number, country and address. During the registration process, you will be asked to choose a password and username for your Account (“Login Credentials”). You may also order Goods via the Online Shop without opening an Account. In order to make payments via the Online Shop, you will be required to provide your billing information, such as credit card details or bank account details (“Billing Information”).
You must provide accurate and complete information when creating an Account and purchasing Goods and you agree not to misrepresent any of your personal information, Account information or Billing Information, and to keep your Account information and Billing Information accurate and up to date. You may not assign or transfer your rights or delegate your duties under the Account and/or these Terms without Kleentek’s prior written consent.
You are solely and fully responsible for maintaining the confidentiality of the Login Credentials of your Account and for all activities that occur under your Account. You agree not to disclose your Login Credentials to any third party. If you forget your password, you can request to have a new password sent to your registered e-mail address. Your Account is at risk if you let someone else use it inappropriately and we reserve the right to terminate your Account if you or anyone using your Account violates these Terms.
You must notify us immediately of any unauthorized use of your Account or Login Credentials or any other breach of security. We cannot and will not be liable for any loss or damage arising from any failure by you to comply with the Terms or from any unauthorized use of your Account or any other breach of security. You may be liable for the losses of Kleentek and/or others due to any such use.
If you wish to modify your Account information, or if you wish to terminate your Account, you may do so by contacting us at: email@example.com. Your Account will be terminated within a reasonable time following your request, and from that date you will no longer be able to access your Account.
You may only purchase Goods if you are at least eighteen (18) years old. If you are under the age of eighteen (18) or under the legal age to form a binding contract in the jurisdiction in which you are located, you may only purchase Goods under the supervision of a parent or legal guardian who has agreed to stand behind any agreement you enter into while purchasing the Goods, including these Terms.
- Online Payments and Prices
Unless otherwise stated in the Online Shop or Website, all prices advertised for the Goods are in Australian Dollars and do not include shipping and handling or applicable taxes including, without limitation, Goods and Services Tax (GST) imposed on the sale of goods, or any other applicable tax that may substitute or replace the GST. Once you have selected the Goods you would like to purchase, you may view the Goods selected and the final purchase price, including freight and delivery costs and all applicable taxes, GST and VAT (the “Purchase Price”) in your online cart. Once you proceed to “Checkout”, you will be required to fill out your Billing Information in order to complete the purchase.
Payment via the Online Shop may be effected either by credit card (only Mastercard or Visa), bank wire transfer or via PayPal. You may select the payment method you wish to use. All payments via our Website are encrypted using industry standard encryption methods. By placing your order and purchasing the Goods online, you agree that your Billing Information may be used to process your payment and to execute your order.
Once you have completed the payment process, we will send you an order confirmation together with a corresponding invoice to your email address. Upon completion of your order and payment, your purchase of the Goods has become binding.
All applicable taxes, fees, duties, tariffs or charges that may be imposed in relation to the purchase of the Goods (including sales, use, excise, other taxes) are your sole responsibility and you shall, upon our demand, promptly pay or reimburse us for payment of any such taxes or fees. If you claim to have an exemption from such taxes, an exemption certificate must be furnished to us.
- Offline Payments – Quotations and Purchase Orders.
If you contact us before any online purchase and upon your request, we will provide you with a quote with an estimation of the Purchase Price for the purchase of the Goods, which quote shall remain valid for a period of thirty (30) days. The Purchase Price shall exclude GST in any quote. Any quote shall be treated as an invitation and estimation only and not an obligation on our part to sell or offer. We reserve the right to vary any price quoted, either orally or in writing, at any time prior to determination of the final Purchase Price and approval by you in a Purchase Order (as defined below). Upon your approval of the quote, you will send us a purchase order, detailing the exact Goods purchased, the Purchase Price, the delivery date, payment terms and any other terms mutually agreed by you and Kleentek (the “Purchase Order”). Each Purchase Order executed between you and Kleentek shall be incorporated into these Terms by reference and the terms and conditions of these Terms shall apply thereto. Following receipt of the Purchase Order from you, we will issue you an invoice stipulating the due date for payment. Payment of the Purchase Price shall be made by credit card (only Mastercard or Visa) or bank wire transfer. Alternatively, if you are an existing customer with established account terms, we may agree to allow you to make payment on account. All prices shall be Ex Works Delivery Point (as defined below), unless agreed otherwise by us in a Purchase Order. The terms and conditions set forth in Section 5 shall apply to the purchase of Goods and to payments made offline and not via the Online Shop, upon contacting Kleentek.
- Default in Payment.
If any Purchase Price or other amount payable under a Purchase Order is not paid by its due date, you will pay interest for every late payment day from the due date until actual payment is made, at a rate of eighteen percent (18%) per annum, or the maximum amount permitted by law. If payment remains due and owing fourteen (14) days following our request for you to make payment, we shall have the right, in addition to any other remedy available to it by law or in equity, to either, in our sole and absolute discretion and without any liability on our part: (i) cancel the purchase and the provision of Goods; (ii) cancel your account terms and all outstanding payments owing to us will become immediately due and payable upon our demand; or (iii) suspend delivery of the Goods, until full and final payment of the Purchase Price. All costs and expenses, including, but not limited to, freight and transportation costs, storage costs and costs of resale incurred by us as a result of exercising any of our rights hereunder in the event of your default, shall be borne solely by you.
Subject to your full payment of the Purchase Price, and unless otherwise mutually agreed between us, we will make the Goods available to you, for delivery to you, at our factory located at 10 Sugar Rd, Maroochydore, Queensland, 4558 (the “Delivery Point”), as soon as commercially practicable and in no event later than sixty (60) days following Seller’s receipt of Purchase Price. Our liability shall be limited to the Delivery Point. The Goods constitute our property and, subject to full payment of the Purchase Price, the ownership title thereto and risk of loss shall pass to you from the moment of its supply to the Delivery Point. Any loss, damage or deterioration to, or of, the Goods after delivery at the Delivery Point shall be for your account, and you shall bear the cost of all such loss, damage or deterioration. All charges for freight, transportation and delivery shall be at your sole expense. For the avoidance of doubt, the Goods will only be delivered after we have received the full Purchase Price. In the event you delay payment (including any deposits, or any progress (milestone) payments), this may cause consequential delays of delivery on our part or consequential unavailability of the Goods and we shall have no liability with respect to any such delivery delays or unavailability as a result of your delay in payment.
In the event any of the Goods you have purchased are out-of-stock, we will promptly notify you and deliver the Goods to you once it becomes available, unless you request cancellation, in which case we will cancel the purchase of the Goods or any part thereof and refund the pro-rated amount paid for the applicable Goods, only if such Goods were not specifically ordered by us pursuant to your order.
We may accept returns for credit on a case-by-case basis, in our sole and absolute discretion, depending on the Goods purchased. As a general rule, and subject to our approval, return for credit will only be accepted for standard Goods (without any custom changes made by us) and Goods that have not been used, up to an amount of three thousand US Dollars ($3,000), within twenty-one (21) days from the date of delivery of the Goods to you. Credit for Goods returned after this period is at our sole discretion and if accepted, may incur a restocking fee of twenty percent (20%) of the Purchase Price. Furthermore, chemicals may not be returned.
As a condition to credit for returned Goods, the Goods must be clean, in a re-saleable condition as well as in the original packing and with all documentation included, in the condition it was when delivered. Goods shall be returned at your sole expense and prior to return, a “Return Authorization” number must be obtained from our customer service and this number should be clearly marked on the package. Your failure to comply with these conditions shall constitute your acceptance of the Goods and you thereby waive any right to return for credit.
- Changes and Termination
We reserve the right, from time to time, to change the design or construction of any of our Goods. In the event any Goods purchased hereunder are changed prior to delivery, we will notify you thereof, and you shall be entitled to either accept the changed Goods or cancel the order as to the applicable Goods only and receive a refund of any Purchase Price paid in respect thereof. The foregoing shall be your sole remedy for any change to any Goods purchased hereunder prior to delivery, and we shall have no other liability whatsoever for any such change.
We reserve the right to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the Online Shop (or any part thereof), and/or block, limit, suspend or terminate your Account and/or access to the Online Shop, for any reason and at our sole discretion, in addition to any other remedies that may be available to us under any applicable law.
In addition, you hereby acknowledge and agree that the content and the Goods displayed on the Website and Online Shop may be changed, extended in terms of content and form or removed at any time without any notice nor any responsibility or liability to you or any third party.
- Reservation of Title
Until full payment of the Purchase Price, legal and beneficial ownership of any and all Goods supplied to you remains ours. We have full power to regain possession of, and resell, any and all of the Goods supplied irrespective of part payment thereof. We may exercise our rights in the event of a breach of any term or provision of these Terms or in the event you default in payment of the full Purchase Price.
Until full payment of the Purchase Price, you shall have no right to resell, transfer, distribute or otherwise dispose of the Goods and you shall ensure that the Goods are stored in a separate designated section of your premises, in such a way as to indicate that the Goods are not your property, but remains our property. You shall not remove any markings, tags or labels from the Goods that may indicate that the Goods are our property. To the extent that the Goods may be used in connection with any business conducted by you, you shall advise in writing any potential customer or other third party that the Goods are the property of Kleentek.
In connection with our rights and remedies pursuant to the provisions under this Section 10 and any other rights or remedies which may accrue to us by virtue of these Terms or by law, you hereby appoint Kleentek as your attorney-in-fact, to act for and on your behalf and in your stead to execute and file any documents and to do all other lawfully permitted acts to further give effect to these conditions. The continued operation of these terms and conditions shall not be affected by any repudiation or other termination of these Terms or any agreement relating to the Goods between us.
- License and License Restrictions
For the purposes of this Section 12: (i) “Documentation” shall mean written guides, manuals, instructions, implementation and specifications to be provided to you by Kleentek, which are associated with the Goods or which Seller deems necessary for the use of the Goods in its sole discretion, or which describe in reasonable detail the operation and functionality of the Goods; and (ii) “Software” shall mean Kleentek’s proprietary operating system software embedded in certain Goods, including without limitation, the Ultrasonic Cleaning Machine.
Kleentek hereby grants you a non-exclusive, non-transferable (except only in the event of permitted resale of the Equipment and under the terms of this License), non-sublicensable, royalty-free, irrevocable (subject to cancellation of the order or return of the Goods pursuant to the terms hereunder), limited license, to use the Software and Documentation provided hereunder by Kleentek to you solely for the purpose of allowing you to use internally the Goods purchased hereunder (the “License”). You hereby acknowledge and agree that the Software and Documentation are licensed, not sold.
You may be required to pay an annual license fee in consideration for the grant of the License. In such event, the license fee shall be stipulated in the invoice, the Purchase Order or via the Online Shop, as applicable. We reserve the right to change, including by way of increasing, the license fee, in our sole and absolute discretion, upon notice to you.
Except as expressly permitted in these Terms, you agree not to: (i) copy, emulate, reproduce, modify, adapt, alter, transform, enhance, or create derivatives of the Software and/or Documentation; (ii) reverse engineer, decompile, disassemble or otherwise attempt to derive the underlying components of the Goods, the Software and/or Documentation; (iii) use the Software and/or Documentation for any purpose other than to exercise your rights under the License; (iv) sell, sub-license, lend, transfer, assign, distribute, promote, market, offer for sale, commercially exploit, or otherwise dispose of the Software and/or Documentation, or any part thereof, to any third party, without our prior written consent; (v) create, manufacture or attempt to create or manufacture a substitute or similar product to the Goods through use of, or access to, the Software and/or Documentation or any part thereof; (vi) use the Software and/or Documentation in any manner that infringes the Intellectual Property Rights (as defined below) or other rights of Kleentek or another party or negatively impacts on our right and title to the Software and/or Documentation; (vii) bundle, integrate, or attempt to integrate the Software and/or Documentation with any third-party product or service; or (viii) cause or permit any third party to do any of the foregoing.
- Intellectual Property
For the purposes of these Term, “Intellectual Property Rights” shall mean all worldwide (a) patents, patent applications and patent rights; (b) rights associated with works of authorship, including copyrights, copyrights applications, copyrights restrictions, mask work rights, mask work applications, moral rights and mask work registrations; (c) rights relating to know-how and the protection of trade secrets and confidential information; (d) design rights and industrial property rights; (e) rights similar to those set forth herein and any other proprietary rights relating to intangible property, whether or not capable of registration, including, without limitation, trademarks, service marks and applications therefore, trade names and packaging and all goodwill associated with the same; (f) divisions, continuation, renewals, reissues and extensions of the foregoing (as applicable) now existing or hereafter filed, issued, or acquired; (g) all rights to sue for any infringement of any of the foregoing rights and the right to all income, royalties, damages and payments with respect to any of the foregoing rights; and (e) Confidential Information.
You hereby acknowledge and agree that Kleentek owns and shall retain all right, title and interest in and to: (i) the Documentation, Kleentek’s Confidential Information (as defined below), and the Software and any and all Intellectual Property Rights therein or related thereto; (ii) the Intellectual Property Rights underlying the Goods; and (iii) any and all modifications, enhancements, adaptations, improvements, derivatives, upgrades and/or updates to any of the foregoing (“Kleentek’s Intellectual Property”). Except for the License and the express rights granted under these Terms, nothing herein shall be construed as granting you any right, title, interest or license in Kleentek’s Intellectual Property. The restrictions set forth in Section 12 above shall apply with respect to Kleentek’s Intellectual Property, mutatis mutandis.
For the purposes of these Term, “Confidential Information” shall mean non-public, proprietary and/or confidential information, disclosed by either Kleentek or you (the “Discloser”) to the other party (the “Recipient”) hereunder, in any form, directly or indirectly, regarding the Discloser and/or its business, including without limitation, all technical and technology information, commercial information, designs, processes, software code (whether in object or source code), trade secrets, and other proprietary information, regardless of the manner or medium in which it is furnished or otherwise obtained by the Recipient, and, if disclosed orally or in other intangible form, which would reasonably be understood to be of a confidential and/or proprietary nature. Notwithstanding the foregoing, Confidential Information shall not include any information which the Recipient can demonstrate upon evidence that: (i) is or becomes generally known to the public through no act of the Recipient contrary to the obligations imposed by these Terms; (ii) that is already known by the Recipient prior to the date of disclosure by the Discloser, as evidenced by dated, written records; (iii) that the Discloser approves for release by express written authorization; (iv) that is independently developed by the Recipient without the use of, or reference to, any of the Discloser’s Confidential Information and without breach of its confidentiality and non-use obligations as specified hereunder, as evidence by dated, written records; or (v) that is obtained by the Recipient, without restriction as to disclosure, from a third party legitimately in possession of it.
Kleentek and you each agree that either you or Kleentek may have disclosed and will disclose to each other certain Confidential Information. For the purposes of these Terms, the Documentation is Kleentek’s Confidential Information. The Recipient agrees that with respect to the Confidential Information of the Discloser, the Recipient will at all times maintain confidentiality of the Confidential Information and keep it secure, using the same degree of care that Recipient uses to protect its own confidential information and in no event using less than reasonable care. Except as required by applicable law, the Recipient shall not use the Discloser’s Confidential Information for any purpose other than to perform its obligations and exercise its rights under these Terms. Further, the Recipient shall not disclose, copy, modify, emulate, reverse-engineer, disassemble, distribute or otherwise transfer the Discloser’s Confidential Information, or any part thereof, to any other person or entity, other than to its employees, officers, consultants, contractors, and agents who have a specific need to know the Confidential Information in order to perform its respective obligations and exercise its rights hereunder (”Representatives”); provided however, that prior to disclosing any Confidential Information to such Representatives, the Recipient shall have ensured that they are under an obligation of confidentiality and non-use (whether by contract, corporate code of conduct or professional code) substantially similar to those contained in these Terms. The Recipient shall be responsible for unauthorized disclosures and use of the Disclosure’s Confidential Information by such Representatives. The Recipient may also disclose the Discloser’s Confidential Information pursuant to a request or order of a governmental agency or court of competent jurisdiction, provided that: (i) immediately and in any event prior to disclosure of any Confidential Information, Recipient shall notify Discloser of the existence, terms and circumstances surrounding such a request; (ii) Recipient shall use reasonable efforts to resist disclosure and reasonably cooperate with Discloser in the event Discloser elects to contest such disclosure or seek a protective order or other appropriate remedy; and (iii) in the absence of a protective order or the receipt of a waiver of compliance with the provisions of these Terms granted by the Discloser, Recipient shall only disclose the exact Confidential Information or portion thereof specifically requested by such order or proceeding. Confidential Information disclosed pursuant to these Terms shall remain the sole and exclusive property of Discloser. The provisions of this paragraph shall continue indefinitely for as long as the Confidential Information remains Confidential Information as defined hereunder.
You shall be in default and breach under these Terms if you: (i) fail to pay the Purchase Price or other amount required under these Terms within the due date of such payment; (ii) fail to comply with any of your obligations, representations or warranties contained in these Terms, or any other instrument or document executed in connection with this Agreement; or (iii) commit or fail to commit any act that results in jeopardizing our rights or causes us to deem ourselves insecure as to our rights. If you are in default under these Terms, we shall have the right, with or without notice to you, to exercise concurrently or separately, and without any election of remedies to be deemed made, the following remedies: (i) elect that Purchase Price due become immediately due and payable; (ii) terminate these Terms with respect to you and cancel your order; (iii) enter your premises, provided notice is first given to you, to repossess the Goods;; and/or (iv) to obtain indemnification from you, if applicable. In the event sub-section (iii) is exercised, you shall immediately pay us the costs and expenses incurred by us in repossessing, releasing and transporting, the Goods.
You further understand and agree that we may suffer irreparable harm in the event that you fail to comply with any of your obligations under Sections 12 (“License and License Restrictions”), 13 (“Intellectual Property”) or 14 (“Confidentiality”), and that monetary damages in such event may be inadequate to compensate us. Consequently, in such event we may be entitled, in addition to such monetary relief as may be recoverable by law, to such temporary, preliminary and/or permanent injunctive relief as may be necessary to restrain any continuing or further breach by you.
- Representations and Warranties; Disclaimers
You hereby represent and warrant to us that: (i) you have the right and power to enter into these Terms and to perform all of your obligations under these Terms, and that by virtue of entering into these Terms, you are not and will not be in breach of any obligation to any third party; (ii) if you purchase any Goods on behalf of an entity or any third party, you represent and warrant that you are duly authorized under any applicable law to represent such entity or third party in connection with these Terms and to commit it to be bound by these Terms, and hereby make all representations and warranties herein on both your and its behalf; (iii) you shall comply with any and all applicable laws, rules and regulations in performing your obligations pursuant to these Terms, in relation to the import, use, installation, maintenance and safekeeping of the Goods, and shall refrain from acting in a manner which would bring us into disrepute; (iv) you shall comply with the contents in the Documentation, including the ‘Technical Data Sheet’ and the ‘Material Safety Data Sheet’ (MSDS) for any chemical supplied and being used with the Goods, if applicable, and you shall be responsible for ensuring that any person operating the Goods has read and understood the all relevant product disclosures, including in relation to the chemicals, and is familiar with the safe operation of the Goods; and (v) you shall ensure safe working environment and procedures and safe storing, handling and disposal of the Goods, including any chemicals supplied, and shall use the Goods, including chemicals, in strict accordance with their original purpose and specifications and must accord with the chemical data sheets provided. You further undertake to conduct your own risk assessment as to the use of the Goods in your location. You shall inform us, in writing, of any risks you may identify which were not identified by us, and in consultation with us and/or our safety consultants, you shall take such action as deemed necessary to mitigate these risks before use of the Goods.
KLEENTEK’S WARRANTY POLICY WITH RESPECT TO THE GOODS SOLD HEREUNDER IS AVAILABLE AT HTTP://KLEENTEK.NET.AU/WARRANTY-RETURNS (THE “WARRANTY”).
OTHER THAN AS EXPRESSLY SET FORTH ABOVE AND UNDER THE WARRANTY, AND SUBJECT TO THE WARRANTY’S EXCEPTIONS AND CONDITIONS, NEITHER PARTY MAKES ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THESE TERMS, THE GOODS AND/OR KLEENTEK’S INTELLECTUAL PROPERTY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RELIABILITY, QUALITY, USEFULENESS, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY CONDITION OR WARRANTY ARISING FROM COURSE OF PERFORMANCE, DEALING OR USAGE OF TRADE, ARE HEREBY EXCLUDED BY KLEENTEK.
WE FURTHER DISCLAIM AND WE SHALL BEAR NO LIABILITY OR RESPONSIBILITY FOR: (I) THE USE, OPERATION, HANDLING AND DISPOSAL OF THE GOODS BY YOU OR ANYONE ON YOUR BEHALF, INCLUDING ANY CHEMICALS THAT MAY BE USED WITH THE GOODS AND PURCHASED BY YOU; AND (II) ANY DAMAGE, LOSS, DESTRUCTION, PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, AND RELATED COSTS AND EXPENSES, AS A RESULT OF YOUR FAILURE TO COMPLY WITH THE DOCUMENTATION IN RELATION TO THE USE, STORAGE, MAINTENANCE AND DISPOSAL OF THE GOODS, INCLUDING ANY CHEMICALS. KLEENTEK DISCLAIMS ANY WARRANTY THAT THE CHEMICALS ARE FIT FOR YOUR PARTICULAR PURPOSE.
WE DO WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE ONLINE SHOP (OR ANY PART THEREOF). THE ONLINE SHOP (AND ANY PART THEREOF), INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, PRODUCTS, AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED.
IN THE EVENT THAT THESE TERMS CONSTITUTES A SUPPLY OF GOODS OR SERVICES TO A CONSUMER, AS DEFINED IN THE TRADE PRACTICES ACT 1974 (CTH) OR ANY OTHER NATIONAL, STATE OR TERRITORY LEGISLATION (THE “ACTS”), NOTHING CONTAINED IN THESE TERMS SHALL EXCLUDE, RESTRICT OR MODIFY ANY CONDITION, WARRANTY OR OTHER OBLIGATION IN RELATION TO THESE TERMS AND THE GOODS.
YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE ONLINE SHOP AND THE GOODS IS ENTIRELY, OR TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AT YOUR OWN RISK.
- Limitation of Liability.
TO THE FULL EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER SPECIAL DAMAGES, INCLUDING LOSS OF PROFITS, SUFFERED BY THE OTHER PARTY ARISING OUT OF OR RELATED TO THESE TERMS OR THE GOODS, FOR ALL CAUSES OF ACTION OF ANY KIND (INCLUDING TORT, CONTRACT, NEGLIGENCE, STRICT LIABILITY AND BREACH OF WARRANTY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULL EXTENT PERMITTED BY LAW, WHERE THE BENEFIT OF ANY CONDITION, WARRANTY OR OTHER OBLIGATION IS CONFERRED UPON BUYER PURSUANT TO ANY OF THE ACTS, OUR SOLE LIABILITY FOR BREACH OF ANY SUCH CONDITION, WARRANTY OR OTHER OBLIGATION, INCLUDING ANY CONSEQUENTIAL LOSS WHICH YOU MAY SUSTAIN OR INCUR, SHALL BE LIMITED (EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN) TO: (I) THE REPLACEMENT OF THE GOODS; (II) THE SUPPLY OF EQUIVALENT GOODS; OR (III) THE REPAIR OF THE GOODS OR PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED.
NO ACTION MAY BE BROUGHT BY A BUYER FOR ANY BREACH OF WARRANTY OR BREACG OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. AS SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THEN SUCH LIMITATIONS ONLY MAY NOT APPLY TO A USER RESIDING IN SUCH STATES.
YOU HEREBY ACKNOWLEDGE AND AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
IN ANY EVENT, TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW AND BY THE ACTS, EXCEPT FOR OUR WILLFUL MISCONDUCT, IN NO EVENT SHALL OUR TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THESE TERMS, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US HEREUNDER.
To the maximum extent permissible by law, you shall indemnify and hold harmless Kleentek, its employees, officers, directors, shareholders, contractors, representatives and agents (the “Kleentek Indemnitees”) from, any and all claims, actions, suits, proceedings, (including third party claims), and related costs, expenses, losses, damages and liabilities, (including reasonable attorney costs and fees) (collectively, the “Claim”), arising out of, in connection with, or resulting from: (i) your breach of any warranty, representation or obligation under these Terms, including without limitation, breach of intellectual property rights and/or breach of confidentiality; (ii) your gross negligence or willful misconduct; (iii) your violation of any applicable law, rule or regulation; and (iv) the purchased Goods and/or Kleentek’s Intellectual Property as a result of an act or omission by you after delivery. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
- Amendments to the Terms
- Force Majeure
For purposes of these Terms, the term “Force Majeure Events” shall mean with respect to any party an event or circumstance which the given party cannot reasonably control, which cannot be avoided, suspended or cured in spite of the efforts of the given party, and as a result of which the party is unable to perform its obligations hereunder. Force Majeure Events, provided that they meet the criteria above, shall include, but shall not be limited to, war, armed hostilities, blockade or embargo, terrorist acts, fire, drought, explosion, storm, wind, flood, earthquake, or other natural calamities or adverse weather conditions or acts or omission by third party suppliers.
Neither you nor we shall be required to perform the obligations hereunder and shall not be considered in breach of our respective obligations if such obligations cannot be performed due to Force Majeure Events, provided that the insufficiency of funds by you shall under no circumstances be considered a Force Majeure Event, and shall not relieve you from performance of payment obligations hereunder (including but not limited to your obligations to pay for purchased and delivered Goods, pay the License fee, and to pay interest, if and as applicable) and shall not excuse the failure to perform the payment obligation.
In case of existence of a Force Majeure Event, a party which is directly affected by such Force Majeure Event shall notify the other party in writing as soon as practicable and in any event no later than five (5) business days after its first occurrence, describing respective facts and data, expected outcome and duration.
The parties shall not be liable for full or partial failure to perform their obligations for the duration of the Force Majeure Event. In such case the term of performance of respective obligations shall be extended by the duration of the Force Majeure Events. The rights and obligations of the parties shall be adjusted and settled to the extent of their performance, as for as is reasonable and practicable in the particular circumstances and taking account of normal commercial practice, up to the time of the Force Majeure Event.
- These Terms do not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between Kleentek and you.
- These Terms, and the rights and remedies provided hereunder, and any and all claims, disputes and controversies arising hereunder or related hereto, their interpretation, or the breach, termination or validity thereof, the relationships which result from these Terms, or any related purchase shall be governed by, construed under and enforced in all respects solely and exclusively in accordance with the laws of the State of Queensland, Australia, without reference to its conflict-of-laws principles, and shall be brought in, and settled under binding arbitration, before one or more arbitrators sitting in Brisbane, Queensland, Australia. The arbitration shall be conducted in English. Notwithstanding anything to the contrary in these Terms, either party shall be entitled to approach any court of competent jurisdiction for urgent interlocutory, interdictory or injunctive relief.
- Kleentek may assign its rights and obligations hereunder and/or transfer ownership rights and title in the Goods to a third party without your consent or prior notice to you. You may not assign or transfer any of your rights and obligations hereunder without the prior written consent of Kleentek. Any attempted or actual assignment thereof without Kleentek’s prior explicit and written consent will be null and void.
- If any provision of these Terms is found to be unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these Terms and will not affect the validity and enforceability of any remaining provisions.
- No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
- These Terms constitute the entire terms and conditions between you and Kleentek relating to the subject matter herein and supersedes any and all prior agreements, understandings, promises, conditions, negotiations, covenants or representations, whether written or oral, between Kleentek and you, including, without limitation, those made by or between any of our respective representatives, with respect to the purchase of Goods, excluding any bilateral written agreements executed by both Kleentek and you. You agree that you will make no claim at any time or place that these Terms have been orally altered or modified or otherwise changed by oral communication of any kind or character. You further agree that you are not relying upon any promise, inducement, representation, statement, disclosure or duty of disclosure of Kleentek in entering into these Terms.
If you have any questions (or comments) concerning the Terms, you are welcome to send us an e-mail to the following address, and we will make an effort to reply within a reasonable timeframe: firstname.lastname@example.org