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11. Reservation of Title
11.1 The Products remain the sole and absolute property of Conergy
as legal and equitable owner, and the property in and title to the
Products will not pass from Conergy to the Purchaser until the
Purchaser has paid Conergy in full for the Products and for all other
Products and Services supplied by Conergy.
11.2 Until title in the Products has passed pursuant to clause 11.1 the
Purchaser holds the Products as bailee in the capacity of a fiduciary
for Conergy. The Purchaser must keep the Products supplied to it
by Conergy in its possession and take good care of them and store
them and mark them in a manner that identifies the Products supplied
and clearly shows that they belong to Conergy. In particular, the
Purchaser must sufficiently insure the Products at their new value and
at the Purchaser’s own expense against fire and water damage and
theft. If maintenance and inspection work is necessary, the Purchaser
must carry out that work at the Purchaser’s own expense.
11.3 If the Products in any way become attached to or a part of another
object before the Purchaser has paid Conergy in full for the Products
and for all other Products supplied by Conergy, property in so much
of the object as is comprised by the Product will remain with Conergy
and will not pass from Conergy to the Purchaser until the Products
and all other goods supplied, or Services performed, by Conergy
have been paid for in full. Until Conergy is paid in full for the Products
and all other goods supplied, or Services performed, by Conergy the
Purchaser holds any objects to which the Products are attached or of
which the Products form a constituent part as bailee in the capacity of
a fiduciary for Conergy and must store such objects separately so as
to be readily identifiable.
11.4 If the Products (or any objects to which the Products are attached
or of which the Products form a constituent part) are onsold by
the Purchaser to a third party prior to payment by the Purchaser
in full for the Products and all other goods supplied or Services
performed, by Conergy, the Purchaser does so as agent for Conergy
and the Purchaser unconditionally agrees to keep the proceeds of
such onsale in a separate bank account on trust for Conergy and,
at Conergy’s request, to assign to Conergy any debt owed to the
Purchaser in relation to the onsale, until Conergy has been paid in
full for the Products and for all other goods supplied by Conergy.
Notwithstanding this clause, the Purchaser must not represent to
any third parties that it is in any way acting for Conergy and Conergy
will not be bound by any contracts with third parties to which the
Purchaser is a party.
11.5 If any payment by the Purchaser to Conergy is overdue, in whole or
in part, or the Purchaser is otherwise in default under any contract
with Conergy, or the Purchaser becomes bankrupt or commits any
act of bankruptcy or compounds with its creditors or have judgment
entered against it in any court or, being a company, has a provisional
liquidator, receiver or manager appointed or otherwise suffers
some form of insolvency administration, all sums then owing by the
Purchaser to Conergy in relation to the Products or in relation to other
goods supplied, or Services performed, by Conergy will become
immediately due and payable and Conergy may (without prejudice to
any of its other rights) recover and resell the Products and any other
goods supplied by Conergy and may, for that purpose, enter upon
the Purchaser’s premises by its servants or agents, and Conergy is
irrevocably authorised to effect such entry, including the use of such
reasonable force as is necessary to effect such entry, and to use
the name of the Purchaser and to act on behalf of the Purchaser,
if necessary, to recover possession of the Products and any other
goods supplied by Conergy and to detach the Products and any such
other goods from any other object to which they have been attached
or of which they form a constituent part. The Purchaser must provide
Conergy all information and documents necessary, and otherwise
assist Conergy to recover possession of the Products.
11.6 If Conergy recovers the Products or any other goods, it may resell the
Products or any other goods recovered. If the proceeds of sale are
more than the amount due to Conergy from the Purchaser, Conergy
may use the balance to pay the costs of taking possession and selling
the Products or any other goods. If on resale the proceeds of sale
are less than the amount due to Conergy, Conergy may recover the
shortfall from the Purchaser.
11.7 If a third party seizes Products, the Purchaser must immediately
inform Conergy in writing.
1. Construction Modifications
Conergy reserves the right to modify the construction of Products at any
time, however, Conergy is not obliged to carry out such modifications to
Products already delivered.
13. Confidentiality
If not otherwise explicitly agreed, any and all information provided to
Conergy in connection with Orders shall not be considered confidential.
14. General
14.1 If any of these Terms and Conditions or a provision of any other
agreement is held by any competent authority to be unlawful, invalid
or unenforceable in whole or in part then the validity of the other
provisions of these Terms and Conditions and the remainder of the
provisions in question will not be affected and will continue to be valid
and enforceable to the fullest extent permitted by law.
14.2 The law of New South Wales governs these Terms and Conditions
and the Vienna Convention of Sales of Goods does not apply. The
Purchaser agrees to submit to the jurisdiction of the appropriate Court
of New South Wales nominated by Conergy.
14.3 The Purchaser must not transfer, assign or sub-contract its
obligations under these Terms and Conditions without Conergy’s prior
written consent.
14.4 Failure or neglect by Conergy to enforce at any time any of these
Terms and Conditions will not be a waiver of Conergy’s rights and
will not affect the validity of the whole or any part of these Terms and
Conditions or prejudice Conergy’s right to take subsequent action.
14.5 Any notice required under these Terms and Conditions must be in
writing addressed to the other party at its registered office or principal
place of business or any other address notified by the receiving party
to the party giving the notice.
