1. These Terms set out the contractual basis upon which we agree to supply you with Goods and Services and apply to every Contract between Ozone 1 Pty Ltd trading as Brauer Swim ABN 99 109 648 722 (‘us’) and you.
2. Any terms or conditions included in, attached to, or referenced in your Order, or any other document provided by you deviating from, or inconsistent with, these Terms, are expressly rejected by us and will not vary or supplement these Terms.
3. Each supply which we make following our acceptance of an Order will be regarded as a separate Contract, which is subject to these Terms.

Credit Facility

4. Where we have granted you a credit facility (including where we agree to supply Goods or Services on payment terms other than cash before delivery), the additional credit, security and privacy terms in clauses 4.1–4.16, 23–23.7 and 40–40.11 apply to all such supplies. If you have signed a separate credit agreement, account application or credit facility terms with us (together, Credit Facility Terms), those Credit Facility Terms prevail over these Terms to the extent of any conflict,
ambiguity, or inconsistency in relation to the provision of credit, security interests or enforcement of payment obligations.
4.1 You warrant that each person who places an Order with us, signs any document on your behalf, or otherwise deals with us in relation to the supply of Goods or Services, is duly authorised to do so and to bind you to these Terms.
4.2 You indemnify us for all loss, damage, cost or expense we suffer or incur as a result of a breach of the warranty in clause 4.1.
4.3 You agree that we may issue quotations, invoices, statements, PPSA notices, demands, default notices and any other communications to you by electronic means using the email address/es you provide to us from time to time.
4.4 Communications sent by email under clause 4.3 will be taken to have been received at the time they are sent, unless we receive a system-generated bounce-back indicating nondelivery.
4.5 You must notify us in writing within seven (7) days of any change in:
(a) legal or beneficial ownership;
(b) directors or officeholders (if you are a company);
(c) trustees (if you are a trust);
(d) management structure;
(e) ABN or corporate structure; or
(f) control (as that term is generally understood in a corporate or practical sense).
4.6 You remain liable to us for all Goods and Services supplied, and all amounts owing, unless and until we confirm in writing that your account has been closed or transferred.
4.7 All amounts payable by you to us must be paid in full and without any deduction, withholding or set-off, whether at law or in equity.
4.8 This clause operates in addition to, and does not limit, clause 21.
4.9 If you enter into any Contract with us as trustee of a trust, you warrant that: (a) you enter into the Contract in both your personal capacity and as trustee of the trust; (b) you have full power and authority under the trust deed to enter into and perform your obligations under the Contract; and (c) the trust has not been revoked or varied in any material respect that would affect your obligations.
4.10 You agree that the assets of the trust may be made available to satisfy all liabilities you have to us.
4.11 Any credit limit we notify to you is not a commitment to provide credit up to that amount and may be reviewed by us at any time.
4.12 We may, in our sole discretion and without prior notice, vary, suspend, or withdraw any credit terms or credit limit granted to you.
4.13 If we withdraw or suspend credit, all amounts then owing by you to us become immediately due and payable.
4.14 You agree, on our reasonable request, to provide updated financial statements, bank statements and/or other supporting
information for the purpose of assessing or monitoring your creditworthiness.
4.15 We may at any time request that you, and/or any proposed guarantor, provide additional security or guarantees (including
director’s guarantees or security over assets) to support your obligations to us.
4.16 If you or any requested guarantor fails to provide such additional security within seven (7) days of our written request,
we may suspend or cancel any credit facilities made available to you.

Quotations

5. Quotations made by us are estimates only and will not be construed as an offer or obligation to supply any Goods or perform any Services.
6. Unless stated otherwise, quotations made by us:
(a) are exclusive of GST;
(b) are exclusive of the costs of delivery;
(c) are exclusive of the costs of installation costs; and
(c) will remain valid for a period of thirty (30) days from the date of quotation.
7. You acknowledge and agree that quotations made by us may include additional terms or conditions or exclusions, which will supplement (and are intended to be read in conjunction with) these Terms.
8. We reserve the right to withdraw, vary, or extend the time for acceptance in respect of any quotation made by us at any time prior to the formation of a Contract in accordance with clause 11.

Formation of Contract

9. You may accept these Terms (and you will be deemed to accept these Terms) if you, following receipt of a copy of these
Terms:
(a) confirm your acceptance of these Terms; or
(b) place an Order with us.
10. We reserve the right to not accept your Order, without having to provide reasons to you for doing so. For clarity, nothing
in these Terms obliges us to supply you with any Goods or perform any Services at any time.
11. Any Order placed by you will be construed as an offer. A binding Contract will only come into existence, if:
(a) we communicate our acceptance of your Order, whether in writing or by electronic means; or
(b) we supply you with any Goods or perform any Services following receipt of your Order.
12. For clarity, a Contract is formed at the location of ours (Queensland) where your Order is placed.

Price and Payment Terms

13. Subject to clause 14, the Price payable for the Goods or Services will be in accordance with our then prevailing price list/rates (as notified by us to you from time to time), as applicable as at the date of your Order.
14. Where we have issued you a quotation, the Price will be our quoted price (subject to clauses 6 and 24 to 27) which will be binding on us provided you accept our quotation in writing within the period it is valid for acceptance.
15. Unless we have granted you a credit facility, the terms of payment are strictly cash before delivery or on a performance basis.
16. Payment may be made by cash, Electronic Funds Transfer (EFT), VISA, MasterCard and AMEX credit cards, or by using your credit facility with us (where applicable). We reserve the right to change the payment methods that we accept at any time.
17. You acknowledge that we will be at liberty to charge a payment surcharge for applicable direct debit and credit card transactions equal to our reasonable cost of acceptance.
18. We reserve the right to require payment of a non-refundable deposit, the amount of which will be set out in the quotation or otherwise agreed in writing, to be applied as part-payment of the Price. For clarity:
(a) where we require payment of a deposit, we are under no obligation to supply any Goods or Services until the deposit has been received by us in cleared funds; and
(b) the deposit will be refundable in circumstances where:
(i) you are entitled to a refund under the Australian Consumer Law; or
(ii) where you terminate a Contract because of our breach.
19. If GST is imposed on a Taxable Supply made by us to you under any Contract of which these Terms form part, the price of the Taxable Supply will be equal to the GST-exclusive consideration that you must pay to us for the Taxable Supply under the Contract increased by an amount (the “GST Amount”) equal to the amount of GST payable on that Taxable Supply. The GST Amount is, subject to us issuing a Tax Invoice to you, payable at the same time and in the same manner as the consideration to which it relates. If we become liable to pay any tax, duty, excise, or levy in connection with any Contract of which these Terms form part, you must pay us these additional amounts upon written demand.
20. You must check all Tax Invoices and advise us of any errors or omissions within seven (7) days of receipt. Failing advice from you that a Tax Invoice contains any errors or omissions, the Tax Invoice may be deemed accepted by us.
21. Any sums owed to us by you will be made free of any setoff or counterclaim whatsoever, and without deduction or withholding whatsoever.
22. We are entitled to deduct or set off against any monies owing to you by us on any account whatsoever.

Default

23.1 If you default in the payment of any money due to us pursuant to any Contract, we may, without prejudice to any other rights or remedies available to us and in addition to any rights which may be conferred upon us by law or equity, do any or all of the following:
(a) charge you interest on the outstanding amount at the rate of 1.5% per month, which interest will accrue daily from the due
date for payment until the date payment is received by us in full;
(b) require you to pay, in advance, for any Goods or Services (or any part of the Goods or Services) which have not yet been
supplied; and
(c) suspend or cease the supply of any further Goods or Services to you.
23.2 You indemnify us, on demand and on a full indemnity basis, for all costs, charges and disbursements we incur in pursuing any overdue amount or enforcing any right under these Terms, including (without limitation) legal costs on a solicitor and- client basis, debt collection agency fees, and all PPSR registration, search and enforcement fees.
23.3 Our rights under this clause 23 are in addition to, and do not limit, our rights under clauses 60–63 and 73.
23.4 You agree that we may obtain from a credit reporting body a credit report containing personal credit information about you (and any Guarantor, where applicable) in relation to credit provided by us.
23.5 You agree that we may use, and hold, your personal and credit information:
(a) to assess any application by you for credit or a variation of your credit terms;
(b) to assess your ongoing creditworthiness;
(c) to process payments and operate your account;
(d) to assist with the collection of overdue amounts; and
(e) for marketing our Goods and Services to you, unless you tell us in writing that you do not wish to receive such marketing.
23.6 You agree that we may:
(a) exchange information about you (and any Guarantor, where applicable) with other credit providers, trade referees named by you, solicitors, and collection agencies, for any of the purposes in clause 23.5; and
(b) give information about you (and any Guarantor, where applicable) to a credit reporting body to:
(i) obtain a consumer or commercial credit report about you; and/or
(ii) allow the credit reporting body to create or maintain a credit information file about you.
23.7 We will handle personal information in accordance with our privacy policy and the Privacy Act 1988 (Cth). Information about our current privacy policy and how you may access or correct your personal information held by us is available from our office on request or via our website.

Variations

24. If you request or direct that any Goods or Services be supplied that are not strictly in accordance with our quotation or your Order, then such Goods or Services will constitute a variation.
25. A notice of variation must be submitted by you in writing and is only effective if accepted by us in writing.
26. You understand and agree that:
(a) all variations must be agreed in writing prior to the Goods or Services that are the subject of the variation being supplied; and
(b) all variations will be, in our discretion, invoiced at the rates specified in our quotation, as specifically quoted, or in accordance with our then prevailing price list/rates.
27. Notwithstanding clauses 24 to 26, and subject to any rights you might have under the Competition and Consumer Act 2010 (Cth) or any other legislation, we reserve the right to vary the quoted Price, if:
(a) the Goods or Services specified in your Order are varied from the Goods or Services specified in our quotation (or are otherwise varied following the formation of a Contract); or
(b) otherwise as provided for in these Terms.

Order Cancellations

28. You may not cancel an Order (or any part of an Order) once a Contract has been formed, delivery of the Goods cannot be deferred, and Goods ordered cannot be returned, except with our prior written consent, and then only upon terms that you reimburse and indemnify us against all losses we have incurred or may incur as a result of the cancellation, deferral, or return, including third-party supplier restocking fees, cartage, bank charges, other incidental expenses incurred on any part of your Order, and loss of profits.

Delivery

29. Unless our quotation states otherwise, you will be liable for all costs associated with packaging and delivery, including cartage/freight, handling, and other charges. Where you have engaged a carrier to deliver the Goods, you will be also be responsible for the cost of insuring the Goods.
30. You must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
31. You acknowledge and accept that any period or date for delivery stated by us is intended as an estimate only and is not a contractual commitment. We will not in any circumstances be liable for any indirect or consequential loss or damage, loss of profit or opportunity, or damage to goodwill suffered by you or any third party for failure to meet any estimated delivery date or in connection with the delivery service.
32. Delivery will be made within Normal Working Hours on Business Days, unless otherwise agreed in writing.
33. Delivery is deemed to occur at the time:
(a) you, or any third party on your behalf, collects the Goods from us;
(b) the Goods are delivered to the delivery location specified in your Order (or to such other location as otherwise agreed in
writing);
(c) your nominated carrier takes possession of the Goods, in which event the carrier will be deemed to be your agent.
34. If requested by us, you or your duly authorised representative must sign our delivery docket as confirmation that the Goods ordered by you have been received by you in apparent good order and condition.
35. If delivery of the Goods is deferred:
(a) at your request; or
(b) due to you being unable to accept delivery of the Goods (for whatever reason), when:
(c) (where no date for delivery has been specified by you) we are ready to deliver the Goods;
(d) (where a delivery date has been specified by you) the Goods are due to be delivered, then we will be entitled to charge you, and you must pay to us:
(e) reasonable storage charges (which will accrue daily until such time as the Goods are delivered); and
(f) a charge to re-deliver the Goods (where delivery has previously been attempted).
36. You acknowledge and accept that:
(a) we may deliver Goods by instalments and reserve the right to require payment for each separate instalment in accordance with these Terms; and
(b) that you are not relieved from any obligation arising under these Terms, or any Contract of which these Terms form part, by reason of any delay in delivery, and delay in delivery will not entitle you to rescind the Contract.

Risk

37. Risk of loss or damage to the Goods passes to you upon delivery to you or to your agent or to a carrier commissioned by you in accordance with clause 33.
38. You must insure the Goods for their full replacement value on or before delivery against all losses which may be sustained as a result of the loss, damage, or destruction of the Goods (or any part thereof) by accident, theft, fire, explosion, flood, negligence, and such other insurable causes as may be available and must include us as co-insured.
39. If you request that Goods are to be delivered either to an unattended location, left outside your premises, or left outside our premises for collection, you acknowledge that we may deliver the Goods as requested at your sole risk.

Retention of title

40. Until such time as you have made payment in full for the Goods and until such time as you have made payment in full of all other money owing by you to us (whether in respect of money payable under a specific Contract or on any other account whatsoever): (a) title to all Goods supplied by us remains with us and does not pass to you; (b) you hold the Goods as our bailee and fiduciary agent; (c) you must keep the Goods clearly identifiable as our property and separate from any other goods; (d) you may only sell the Goods in the ordinary course of your business; (e) you must not grant, or permit to be granted, any other security interest or encumbrance over the Goods; (f) all proceeds you receive from any sale of the Goods before payment in full to us are held on trust for us and must be remitted to us on demand; and (g) our security interest continues in any Goods that are processed, transformed, affixed or commingled with other property.
40.1 You acknowledge that these Terms constitute a security agreement for the purposes of the Personal Property Securities Act 2009 (Cth) (PPSA).
40.2 You agree that we hold a purchase money security interest (PMSI) under the PPSA in: (a) all Goods supplied by us to you; and (b) all proceeds (as defined in the PPSA) arising from the sale or other dealing with those Goods.
40.3 We may register our security interest, including any PMSI, on the Personal Property Securities Register (PPSR).
40.4 You must do all things reasonably required by us to enable us to perfect, maintain, protect and enforce our security interest, including providing all necessary information and signing all documents.
40.5 You must not, without our prior written consent, lodge or permit to be lodged any amendment demand in respect of any PPSR registration made by or on behalf of us.
40.6 To the extent permitted by law, you waive your rights to receive notices or statements under the following provisions of the PPSA: sections 95, 118, 121(4), 130, 132(3)(d), 132(4), and 135, and the right to receive a verification statement under section 157.
40.7 If you default in payment of any amount when due, or otherwise commit an event of default under these Terms, we may exercise any and all of our rights under the PPSA and at law.
40.8 Without limiting clause 40.7, we may: (a) enter any premises where the Goods are located, without liability for trespass, and recover possession of the Goods; (b) require you to immediately deliver up the Goods to us; and (c) suspend or cancel any credit facilities provided to you and require payment on a cash-on-delivery basis for any future supply.
40.9 You indemnify us on a full indemnity basis for all costs, charges and expenses we incur in exercising our rights under this clause 40, including legal costs and PPSR enforcement costs.
40.10 The security interest created by these Terms is a continuing security and is not extinguished or in any way diminished by any intermediate settlement of account, any part-payment by you, or any change in trading terms.
40.11 The security interest survives the termination of any credit facility, any cessation of trading between the parties and the termination of any Contract.

Returns

41. You must inspect the Goods on delivery and must, within seven (7) days of the date of delivery:
(a) give us written notice, with particulars, of any claim that the Goods delivered are not in accordance with your Order (including any claim for shortfall in quantity, incorrect supply, or defect/damage to the Goods);
(b) must notify us of any alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident;
(c) provide us with photographic evidence (to our satisfaction) of any alleged damage to the Goods; and
(d) must allow us access to inspect the Goods.
42. Unless otherwise agreed in writing, you must pay all costs associated with the return of any Goods (either to us or from us to you or any third party) including freight, insurance, handling, and other charges.
43. Goods cannot be returned to us without our prior written consent from us. To the permitted by law, Goods that have been specifically produced or procured at your request cannot be returned in any circumstances.
44. Any return (except for Goods deemed by us to be incorrectly supplied or deemed by us to be defective) will incur a handling and administration charge of 10% of the purchase Price of the returned Goods, unless otherwise agreed in writing.
45. Goods to be returned within a reasonable time to us in a condition as close to that in which they were delivered, including then must be unsoiled, undamaged, packed and wrapped appropriately, and must include all original packaging and documentation.
46. We accept no liability for any damage that occurs to any Goods in return transit.

Warranties, Defects and Australian Consumer Law

47. Under applicable State, Territory and Commonwealth Law (including, without limitation, the Australian Consumer Law), certain statutory guarantees and warranties are implied into these terms and conditions (Non-Excluded Guarantees). Details of any express warranty given by us for Brauer Swim products, including warranty periods, conditions, exclusions and claim procedures, are set out in our Brauer Swim Warranty Information as published on our website at https://brauerswim. com/terms-and-conditions/ (as updated from time to time). To the extent of any inconsistency between these Terms and our Brauer Swim Warranty Information in relation to the content of any express warranty for Brauer Swim products, the Brauer Swim Warranty Information published on our website will prevail.
48. You acknowledge that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
49. Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, we make no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. Our liability in respect of these warranties is limited to the fullest extent permitted by law.
50. If you are a consumer within the meaning of the Australian Consumer Law, our liability is limited to the extent permitted by section 64A of Schedule 2.
51. If we are required to replace the Goods under this clause or the Australian Consumer Law, but is unable to do so, we may refund any money you have paid for the Goods.
52. If you are not a consumer within the meaning of the Australian Consumer Law, then, to the maximum extent permitted by law, our liability for any warranty claims, defect or damage in the Goods is:
(a) where we manufactured the Goods, limited to the value of any express warranty set out in our Brauer Swim Warranty Information (as published on our website from time to time) or in any warranty card or express warranty statement provided to you by us, at our option;
(b) where we did not manufacture the Goods, limited to any warranty given by the manufacturer of the Goods and actually passed on to you. We are not liable for major failure, material defects and workmanship in Goods which we did not manufacture the Goods; and
(c) otherwise excluded to the fullest extent permitted by law.
53. Notwithstanding clauses 47 to 52, but subject always to the Australian Consumer Law and any Non-Excluded Guarantees, we will not be liable for any defect in, damage to, or failure of the Goods, or any loss or damage you suffer, to the extent caused or contributed to by, or arising as a result of, any of the following:
(a) your failing to properly store, protect or maintain any Goods;
(b) your using the Goods for any purpose other than that for which they were designed, built, manufactured, installed or sold;
(c) your continuing to use any Goods after any defect becomes apparent, or ought reasonably to have become apparent, to a prudent operator or user;
(d) your failing to follow any installation, commissioning, operating, water chemistry or preventative maintenance instructions, recommendations or guidelines issued by us, the Manufacturer of the Goods, or set out in any Brauer Swim product manual, Preventative Maintenance Guide or Recommended Water Balance document;
(e) water chemistry outside the recommended range for the relevant product, or your failure to carry out, document and retain water testing in accordance with our published water testing requirements for the applicable product range (including Residential, Semi-Commercial and Commercial ranges);
(f) your failing to carry out and document preventative maintenance in accordance with our published Preventative Maintenance Guide for the relevant product model, or failure to retain records of such maintenance for warranty validation;
(g) abuse, misuse, negligence, corrosion (internal or external), general wear and tear, inadequate ventilation, or exposure to environmental conditions outside the product’s specified operating limits;
(h) repairs, servicing, alterations or modifications carried out by any person other than us, an authorised Brauer Swim representative/employee or an authorised Brauer Swim partner, or use of non-approved parts, components or consumables;
(i) contamination or ingress of foreign material, including cement, pebbles, render or other pool-surface materials, insects, vermin or other infestation;
(j) damage occurring during transit, freight or handling over which we have no control; or
(k) any accident, act of God or other event beyond our reasonable control.
54. Notwithstanding anything contained in this clause if we are required by a law to accept a return then we will only accept a return on the conditions imposed by that law.
55. In order to make a warranty claim under any Manufacturer’s warranty period, you must be either: (a) the original purchaser of the Goods; or (b) a subsequent owner to whom we have agreed in writing to transfer the benefit of the warranty; and you must provide us with:
(a) proof of purchase showing the date of purchase of the Goods;
(b) description of the Goods;
(c) name and contact details of the place where you purchased the Goods;
(d) name and contact details of who installed the Goods; and
(e) description of the issue or fault.
56. Warranty claims for Brauer Swim products must be submitted using our online Warranty Claim Form at https://brauerswim. com/warranty-claim/ (or any replacement URL notified by us). Warranty registration and any other requirements set out in our Brauer Swim Warranty Information may be required before a claim can be processed.

Intellectual Property

57. All right, title and interest in the Intellectual Property Rights in and to all Works, and all Goods sold or supplied by us are, and will at all times, remain our property.
58. All improvements, derivatives and modifications to the Intellectual Property Rights contemplated by clause 57 (the “Improvements”) vest in us immediately on creation. To the extent necessary to give effect to this clause 58, you assign to us all right, title, and interest in the Improvements.
59. You acknowledge and agree that you have no rights to use our Intellectual Property Rights under these Terms, except as expressly set out herein, unless otherwise agreed in writing.

Indemnity

60. You are liable for and indemnify us in respect of all liability, claims, damage, loss, costs, and expenses (including collection costs, debt recovery fees, and legal costs on an indemnity basis) that we may suffer or incur at any time, directly or indirectly, as a result of any default by you in the performance or observance of your obligations under any Contract of which these Terms form part.
61. Your liability to indemnify us will be reduced proportionally only to the extent that:
(a) any negligent act or omission by us or a breach of our obligations under any Contract of which these Terms form part has contributed to the liability, claim, damage, loss, cost, or expense which is the subject of the indemnity; or
(b) these Terms make us specifically liable for any cost or expense or rectifying or repairing any defect in, malfunction of, or damage to the Goods.
62. Your liability to indemnify us is a continuing obligation separate and independent from your other obligations and survives the performance or termination of any Contract of which these Terms form part.
63. It is not necessary for us to incur any expense or make any payment before enforcing our rights of indemnity conferred by these Terms.Nature of Relationship64. For the removal of doubt, nothing in these Terms, or any Contract of which these Terms form part, is to be construed as giving rise to a relationship of agency, partnership, joint venture, trust, or other relationship with duties or incidents different from those of parties to an arm’s length contract.

Limitation of Liability

65. We will not be liable for any loss or damage, however caused (including by our negligence), suffered or incurred by you in connection with any incorrect information contained in an Order or otherwise provided by or on behalf of you to us from time to time.
66. Subject to clauses 65, 67, 68, and 70, our liability for any loss or damage, however caused (including by our negligence), suffered or incurred by you in connection with any Contract of which these Terms form part is limited to the sum paid to us by you in respect of that Contract prior to the date you first suffered loss or damage in connection with that Contract.
67. The limitation contemplated in clause 66 is an aggregate limit for all claims, whenever made.
68. Subject to clause 70, we are not liable for any Excluded Loss, however caused (including by our negligence), suffered or incurred by you in connection with any Contract of which these Terms form part.
69. For clarity, and without limiting clauses 65 to 68, the Parties agree that clauses 65 to 68 are to apply in connection with a breach of a Contract, anticipated breach of a Contract, and other conduct regardless of the seriousness or nature of that breach, anticipated breach, or other conduct.
70. If the Competition and Consumer Act 2010 (Cth) or any other legislation provides that there is a guarantee in respect of any Goods or Services supplied in connection with any Contract of which these Terms form part and our liability for failing to
comply with that guarantee cannot be excluded but may be limited, clauses 65 to 68 do not apply to that liability and instead our liability for such failure is limited to, in the case of a supply of Goods, us replacing the Goods or supplying equivalent Goods, or in the case of a supply of Services, us supplying the Services again or paying the cost of having the Services supplied again.

Termination of Contract

71. We may, with immediate effect, terminate any Contract of which these Terms form part by written notice to you, if:
(a) you fail to make payment of a deposit required by us or any amount owed to us as and when due;
(b) you commit a material or persistent breach of these Terms and do not remedy the breach within seven (7) days of receipt of a notice identifying the breach and requiring its remedy; or
(c) we are no longer able to, for whatever reason, supply the Goods or Services (or any part of the Goods or Services).
72. For clarity, termination of any Contract of which these Terms form part will not affect the rights which have already accrued to a Party at the time of termination, whether under that Contract or otherwise.

Costs

73. You will pay our costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against you, including collection costs, debt recovery fees, bank dishonour fees, court costs and legal costs on a full indemnity basis.

Force Majeure

74. We are not liable to you for any delay or failure to perform any obligation under any Contract of which these Terms form part if such delay or failure to perform is due to a Force Majeure Event.

Variation

75. No variation of these Terms, or any Contract of which these Terms form part, requested by you will be effective, unless varied in writing and agreed between the Parties. Clerical errors (such as spelling mistakes, grammatical errors, or numerical errors) may be subject to correction by us without notification.
76. We may amend these Terms by notifying you in writing. The amended Terms will apply to any Order placed by you following us notifying you of the amendments.

Assignment

77. Neither Party may assign, transfer, or novate its rights or obligations under any Contract of which these Terms form part without the prior written and fully informed consent of the other (which consent must not be unreasonably withheld).

Waiver

78. A waiver of any provision or breach of these Terms, or any Contract of which these Terms form part, will only be effective if made by the affected Party in writing. If a Party elects not to enforce its rights arising as a result of a breach of a Contract, that will not constitute a waiver of any rights in relation to any subsequent or other breach.

Severance

79. If any provision of these Terms, or any Contract of which these Terms form part, is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the Contract. Other provisions which are self-sustaining are, and will continue to be, enforceable in accordance with their terms.

Entire Agreement

80. Subject to clause 4, the Contract constitutes the entire agreement and understanding between the Parties. All previous negotiations, understandings, representations, warranties, memoranda, or commitments about the subject matter of the Contract are merged in the Contract and are of no further effect. No oral explanation or information provided by a Party to another Party affects the meaning or interpretation of the Contract, or constitutes any collateral agreement, warranty, or understanding.

Governing Law

81. These Terms, and any Contract of which these Terms form part, will be governed by and construed in accordance with the laws of Queensland, and the laws of the Commonwealth of Australia in force in Queensland.
82. The Parties submit to the non-exclusive jurisdiction of the courts of Queensland and the relevant federal courts and courts competent to hear appeals from those courts.

Definitions

83. Unless the contrary intention appears, in these Terms:
“Brauer Swim,” “we,” “us,” “our” means Ozone 1 Pty Ltd trading as Brauer Swim ABN 99 109 648 722.
“Australian Consumer Law” means the Australian Consumer Law as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth).
“Business Day” means a day that is not a Saturday, Sunday, or public holiday in Brisbane, Australia.
“Contract” means a contract for the supply of Goods or Services, as constituted by our quotation (if any), your Order, and these Terms.
“Credit Facility Terms” means our credit facility terms, as set out in the Credit Agreement accepted by you (where applicable).
“Guarantor” means any person, organisation or entity who agrees to be liable for your debts to us on a principal debtor basis.
“Customer,” “you,” “your” means the corporation, partnership, person, or other entity acquiring Goods or Services from us.
“Excluded Loss” means any:
(a) consequential loss;
(b) loss of revenues;
(c) loss of reputation;
(d) loss of goodwill;
(e) loss of profits;
(f) loss of bargain;
(g) indirect loss;
(h) special loss;
(i) lost opportunities, including opportunities to enter into arrangements with third parties;
(j) loss or damage in connection with claims against you by third parties; or
(k) loss or corruption of data.
“Force Majeure Event” means any act of God, acts, decrees, or regulations of Government Authorities, casualty, fire, explosion, storm, flood, frost or snow, earthquake, embargo, industrial action, strike, lockout, civil commotion, riot, insurrection, war, epidemic or pandemic, damage to or destruction of facilities, equipment or mechanical breakdown, failure of a third-party supplier or service provider, or any other cause beyond our reasonable control.
“Goods” means all goods supplied by us to you (and where the context so permits includes any performance of Services) and as are described on our Tax Invoices, quotation, or any other forms as provided by us to you.
“Government Authority” means:
(a) a government or government department or other body;
(b) a governmental, semi-governmental, or judicial person; or
(c) a person (whether autonomous or not) who is charged with the administration of a law
“GST” has the meaning given to it by the GST Act.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Intellectual Property Rights” means all industrial and intellectual property rights throughout the world, whether present or future, and whether protectable by statue, at common law or in equity, including rights in relation to copyright, trade secrets, know how, trade marks (whether registered or unregistered or whether in word or logo/device form), designs, patents and patentable inventions, including
the right to apply for registration of any such rights.
“Normal Working Hours” means 08:00am to 5:00pm.
“Order” means a written or oral order placed by you offering to acquire Goods or Services from us.
“Parties” means Brauer Swim and the Customer, and “Party” means either one of them.
“Price” means the price payable for the Goods or the Services, as notified by us to you from time to time.
“Services” means all services performed by us (and where the context so permits includes any supply of Goods).
“Tax Invoice” and “Taxable Supply” have the same meaning as in the GST Act.
“Terms” means these Sale Terms & Conditions.
“Works” means all literary, artistic, and other works, including all physical works, production materials and subject matter created solely or jointly with others, by us in the course of or in relation to any Contract in which Intellectual Property Rights may subsist and all drafts, variations, alterations, and adaptations of such works or subject matter (whether currently existing or created in the future).

Interpretation

84. If there is any conflict, ambiguity, or inconsistency between any of the documents which comprise a Contract, it is expressly agreed the order of precedence will be (in descending order of precedence):
(a) any additional terms or conditions contained in our quotation (where applicable);
(b) our Credit Facility Terms (where applicable);
(c) these Terms; and
(d) any other documents issued by us.
85. Unless the contrary intention appears, a reference to:
(a) these Terms or another document includes any variation or replacement of them notwithstanding any change in the identity of the Parties;
(b) a reference to a clause is a reference to a clause contained in these Terms;
(c) the singular includes the plural and vice versa;
(d) “right” includes a benefit, remedy, authority, discretion, or power;
(e) “information” is to information of any kind in any form or medium, whether formal or informal, written or unwritten (e.g. computer software or programs, concepts, data, plans, reports, drawings, specifications, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets);
(f) “person” includes a natural person, partnership, body corporate, association, joint venture, Government Authority, or other entity;
(g) a person includes the person’s successors, executors, administrators, substitutes (including a person who becomes a Party by novation), and assigns; and
(h) any statute, ordinance, code, or other law includes regulations and other statutory instruments under any of them and consolidations, amendments, re-enactments, or replacement of any of them.
86. Headings are for convenience only and will not affect the interpretation of these Terms.
87. The meaning of general words is not limited by specific examples introduced by including, for example, or similar expressions.
88. The expressions “in writing” or “written” means any expression of information in words, numbers, or other symbols, which can be read, reproduced, and later communicated, and includes electronically transmitted and stored information.
89. Where two or more persons are defined as a Party in these Terms, that term means each of the persons jointly, each of them severally, and any two or more of them jointly.
90. An agreement, covenant, obligation, representation, or warranty on the part of two or more persons binds them jointly and severally and an agreement, covenant, obligation, representation, or warranty in favour of two or more persons is for the benefit of them jointly and severally.
91. Unless specified otherwise, all reference to sums of money is in terms of Australian currency (AUD), and all documents and correspondence between the Parties will be in the English language.
92. Nothing in these Terms is to be read or construed to purport to exclude, restrict, or modify or have the effect of excluding, restricting, or modifying the application in relation to the supply of Goods or Services all or any of the provisions the Competition and Consumer Act 2010 (Cth) or any other law which cannot be excluded, restricted, or modified.

Date: 1 July 2025