The following general terms and conditions of sale (Terms) apply where Elixir supplies Products to a Customer. These Terms are also available to the Customer at www.thunderroadbrewing.com.
In these Terms:
Elixir’s Account means the bank account details for Elixir which are set out on its Invoice;
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any other equivalent legislation (such as the Fair Trading Acts (or equivalent legislation) in each State and Territory);
Confidential Information has the meaning given to it in clause 15;
Consequential Loss means any loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity or any other loss or damage suffered by a party or any other person which is indirect or consequential;
Consumer has the meaning given to it in section 3 of the Australian Consumer Law;
Contract means the contract between the Customer and Elixir, which consists of the Credit Application (if any), these Terms, and all accepted Orders;
Credit Application means an application for credit completed by the Customer, in a form approved by Elixir;
Customer means the person or entity who is buying the Products from Elixir, the details of which are set out in the Order;
Defective Products means Products that are defective in quality;
Delivery means delivery of the Products by any of the methods set out in clause 6 and Deliver has a corresponding meaning;
Delivery Destination means the destination for Delivery set out in the Order;
Discrepancy has the meaning given to it in clause 9(a);
Elixir means Elixir Signature Pty Ltd ABN 13 459 860 525;
Equipment means, including but not limited to, the kegs in which the Products are Delivered to the Customer and other such equipment provided by Elixir from time to time;
GST means any goods and services tax and any replacement or similar tax;
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Insolvency Event means the happening of any of these events:
(a) a party suspends payment of its debts generally, is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
(b) a party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
(c) a receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
(d) a party goes bankrupt; or
(e) a party ceases, or threatens to cease, to carry on a business;
Intellectual Property Rights means:
(a) inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
(b) copyright (including future copyright) throughout the world in all literary works, artistic works, computer software and any other works or subject matter in which copyright subsists and may in the future subsist;
(c) Confidential Information and trade secrets;
(d) trade and service marks (whether registered or unregistered), business names, trade names, domain names, logos and get-up; and
(e) proprietary rights under the Circuit Layouts Act 1989 (Cth).
Invoice means an invoice issued by Elixir to the Customer setting out the amount to be paid by the Customer;
Loss means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (whether direct, indirect, special, consequential or otherwise);
Order means any order for Products placed by the Customer in accordance with clause 3;
Order Confirmation has the meaning given to it in clause 3(c);
Particular Conditions mean any conditions included by Elixir in the Order Confirmation which apply in respect of the supply of Products;
Products mean all products supplied by Elixir to the Customer;
Premises means 130 Barkly Street, Brunswick VIC 3056 licensed under the Liquor Control Reform Act or such other licensed premises as utilized by Elixir from time to time;
Price means the price for the supply of the Products as provided for in clause 7;
PPSA means the Personal Property Securities Act 2009 (Cth);
Related Body Corporate has the meaning given to that term in the Corporations Act 2001 (Cth);
Representative means officers, employees, agents, representatives, contractors or subcontractors of the relevant party; and
Unrecoverable Equipment means any Equipment which, in the reasonable opinion of Elixir, is incomplete, damaged beyond economical repair, or is destroyed or lost or not able to be returned to the Premises for any reason.
(a) The Contract:
(i) supersedes and excludes all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Products including, but not limited to, those relating to the performance of the Products or the results that ought to be expected from using the Products; and
(ii) overrides any quotes, invoices, accepted or modified Orders and the Customer’s terms and conditions of purchase (if any), exchanged between the parties whether or not such documents expressly provide that they override this Contract or any part of it.
(b) Unless Elixir otherwise agrees in writing, the Contract comprises the only terms which shall apply to all Products supplied by Elixir.
(c) To the extent that there is any inconsistency between these Terms and any Particular Condition, the Particular Condition will prevail to the extent of the inconsistency.
3. ORDER PROCESS
(a) To place an Order, the Customer must by phone, email or facsimile submit an order to Elixir which must include the following information:
(i) Product description;
(ii) Product quantity and volume;
(iii) Delivery Destination; and
(iv) Requested date for Delivery.
(b) Elixir has sole discretion to accept or reject any Order cancellation request by the Customer. If a cancellation request is accepted by Elixir, the Customer will be liable for any Loss incurred by Elixir with respect of that Order (including, without limitation, any costs incurred by Elixir as at the date of cancellation in respect of the Order).
(c) Any Order shall be in the nature of an offer by the Customer to purchase Products referred to in the Order.
(d) Any Orders placed by a Customer are not binding on Elixir unless Elixir provides the Customer with a written confirmation of the Order (which may contain Particular Conditions that Elixir wishes to impose on the Order (Order Confirmation). Elixir has sole discretion to accept or reject any Order, any part of an Order, or any variation of an Order, requested by the Customer.
(e) Orders will only be accepted at Elixir’s Premises, during licensed trading hours. Any contract to supply Products the subject of an Order shall be a contract made in the State of Victoria.
4. METHODS OF DELIVERY AND RISK
(a) The methods of Delivery shall be clearly set out in the Order being one of the following options:
(i) Customer arranged freight: in which case the Customer will arrange for its freight services provider to transport the Products from the Premises to the Delivery Destination within 48 hours after Elixir advises the Customer that the Products are ready for pick up;
(ii) Customer pick up: in which case the Customer must pick up the Products at the Premises within 48 hours after Elixir advises the Customer that the Products are ready for pick up; or
(iii) Seller Delivery: in which case Elixir will Deliver the Products to the Delivery Destination in accordance with clause 5.
(b) Risk passes to the Customer:
(i) in the case of Delivery under clause 4(a)(i) when the Products are picked up by the Customer’s freight services provider;
(ii) in the case of Delivery under clause 4(a)(ii) when the Products are picked up by the Customer; and
(iii) in the case of Delivery under clause 4(a)(iii) when the Products are Delivered to the Customer’s premises.
(c) Where Products are being Delivered under clause 4(a)(i) or 4(a)(ii) Elixir is not responsible for any damage to, or loss of, the Products or any other Loss which arises or is in any way connected with the pick up or transportation of the Products by the Customer’s freight services provider or by the Customer. The Customer hereby releases and holds harmless Elixir from any such Product damage or loss or any other Loss incurred or suffered by Elixir. If the Customer requests that Elixir load, or assist the Customer or its freight services provider in the loading of, the Products for transportation, Elixir will not be liable for any damage or loss to the Products or any other Loss incurred by the Customer in connection with any such loading activities and the Customer hereby indemnifies Elixir and its Representatives for any Loss incurred or suffered by them in connection with any such loading activities.
(d) Where Products are being Delivered under clause 4(a)(iii), if there is any damage to, or loss of, the Products, the Customer must as soon as practicable after Delivery (being no more than 24 hours after Delivery) advise Elixir in writing via email, indicating the relevant damage or loss. The Customer releases and holds harmless Elixir from any liability for damage to, or loss of the Products or for any other Loss suffered or incurred by the Customer in connection the transportation of the Products unless the procedure set out in this clause is strictly adhered to by the Customer.
5. DELIVERY TERMS
(a) Elixir will use all commercially reasonable efforts to Deliver the Products (or have them ready for pick up as the case may be) for which it has accepted an Order by the delivery date specified in the Order.
(b) Elixir may Deliver the Products (or have the Products ready for pick up as the case may be) by separate partial Deliveries. Each separate partial Delivery will be invoiced and paid in accordance with clause 7.
(c) Delivery of the Products to a third party nominated by the Customer is deemed to be Delivery or supply to the Customer for the purposes of these Terms.
(d) The failure of Elixir to Deliver the Products does not entitle either party to treat these Terms or the Contract as repudiated.
(e) To the extent not excluded by law, Elixir is not liable for any Loss whatever due to a failure by Elixir to Deliver the Products promptly or at all.
(f) Where Products are being Delivered under clause 4(a)(i) or 4(a)(ii), the Customer must arrange pick up within 48 hours after Elixir advises the Customer that the Products are ready for Delivery.
If the Customer fails to arrange pick up within that time frame Elixir may exercise any of its termination rights under clause 12.
(a) Legal and equitable title in and to the Products shall not pass to the Customer until payment in full for all Products is made.
(b) Elixir’s rights under this clause 6 secure (i) Elixir’s right to receive the price of the Products and (ii) all other amounts owing to Elixir under any other contract.
(c) All payments received from the Customer must be applied by Elixir in accordance with section 14(6)(c) of the PPSA.
(d) Until full payment in cleared funds is received by Elixir for all Products supplied by it to the Customer, as well as all other amounts owing to Elixir by the Customer under any other contract, (i) subject to clause 7(d)(ii), the Customer shall store the Products separately and in such a manner that they are clearly identified as the property of Elixir and ensure that the Products are properly stored, protected, readily identifiable and insured; (ii) the Customer must not sell the Products except in the ordinary course of the Customer’s business; (iii) in addition to any rights Elixir may have under Chapter 4 of the PPSA, Elixir shall be entitled (in the event of a breach or anticipated breach of these Terms or the Contract by the Customer) at any time until title in and to the Products passes to the Customer to demand the return of the Products and shall be entitled without notice to the Customer and without liability to the Customer to enter any premises occupied by the Customer (or any other premises where the Customer is holding the Products) in order to search for and remove the Products and for this purpose the Customer irrevocably licenses Elixir to enter such premises and also indemnifies Elixir from and against all Loss suffered or incurred by Elixir as a result of exercising its rights under this clause 6. If there is any inconsistency between Elixir’s rights under this clause 6(d)(iii) and its rights under Chapter 4 of the PPSA, this clause 6(d)(iii) prevails; (iv) the Customer acknowledges and warrants that Elixir has a security interest (for the purposes of the PPSA) in the Products and any proceeds described in this clause 6 until title passes to the Customer in accordance with this clause 6. The Customer must do anything reasonably required by Elixir to enable Elixir to register its security interest, with the priority that Elixir requires and to maintain that registration; and (v) the security interest arising under this clause 6 attaches to the Products when the Customer obtains possession of the Products and the parties confirm that they have not agreed that any security interest arising under this clause 6 attaches at any later time.
7. PRICE & PAYMENT
(a) The Price for the Products is the price set out on the Invoice.
(b) Elixir shall submit its Invoice to the Customer following Delivery of Products.
(c) Time for payment for the Products is of the essence. Payment will be made in accordance with the Particular Conditions. If the Customer is an “approved purchaser” (which is entirely at Elixir’s discretion) then the Customer must make payment within 30 days from the date of Elixir’s Invoice.
(d) Unless the Customer has had its Credit Application approved by Elixir, it must pay the Price on Delivery or in advance of Delivery, in full, by direct bank transfer to Elixir’s Account.
(e) Unless otherwise agreed or otherwise stated in the Particular Conditions, the Price:
(i) is ex works (from Elixir’s premises) and does not include the cost of freight, transportation, special packing, insurance, or other extra costs; and
(ii) does not include any sales, value added, GST or similar tax.
(f) The Customer must pay the Price for Products by cash, credit card (plus any charges that may be applicable), bank transfer to Elixir’s Account, by direct debit or in any other way that Elixir directs in the Particular Conditions.
(g) Payment by cheque or other negotiable instrument if permitted is not regarded as received until it is cleared.
(h) Without prejudice to any other rights or remedies of Elixir, if the Customer fails to make (whether in full or in part) any payment required under these Terms on or before the due date for payment, then:
(i) Elixir may charge the Customer interest on the unpaid amount at 2% per annum above the average of the most recent prime rate, indicator rate, or reference rate (however described) for business overdrafts published by Commonwealth Bank of Australia (and such interest will accrue from the date payment was due to the date payment is made, will be calculated daily and capitalised monthly and must be paid by the Customer upon demand by Elixir;
(ii) Elixir may, at its option and without affecting any other lawful remedy, change the terms of the Customer’s payment, halt the Delivery of any Product, or both, until Purchaser provides security or other assurances for performance as demanded by Elixir; and
(iii) Elixir may exercise any rights that it has under clause 12.
8. GST AND OTHER TAXES AND DUTIES
Despite any other clause in the Contract, to the extent that any supply made under or in connection with the Contract is a taxable supply (as defined by the GST Law), the Customer must pay to Elixir, in addition to the consideration provided for under these Terms for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay to Elixir the additional amount at the same time as the consideration to which it is referable. The Customer is responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the Products.
9. ACCEPTANCE AND PRODUCT DISCREPANCIES
(a) The Customer must, as soon as possible after Delivery of the Products, check whether there are any shortages in the number of Products Delivered, or whether the Products Delivered are Defective Products or are subject to any other discrepancy (each a Discrepancy).
(b) The Customer must report a Discrepancy to Elixir within 24 hours after receipt of Delivery (Discrepancy Notice).
(c) If Elixir does not receive a Discrepancy notice under clause 9(a), the Products Delivered will be considered to accord with the relevant Order and to be accepted by the Purchaser.
(d) Subject to clause 10(c), Elixir’s liability in respect of Products which are the subject of a Discrepancy Notice, is at Elixir’s option to:
(i) remedy the Discrepancy by providing the correct number, quality or type of Products or replacing product; or
(i) provide a refund or credit in respect of the Products which are the subject of the Discrepancy.
10. DAMAGE TO AND LOSS OF EQUIPMENT
(a) Delivery of Products will be conclusive evidence that, at the time of Delivery, the Equipment was in good order and condition and was accepted by the Customer.
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(b) The Customer must not deface, cover, remove or interfere with any logo, trademark, name or other identifying mark, feature, colour or printing on any Equipment.
(c) The Customer must not permit or cause any Equipment to, and will take all reasonable steps to ensure that the Equipment does not, become contaminated by hazardous, corrosive, toxic, radioactive or any other dangerous substance.
(d) The Customer is liable for all damage to, and loss of, Equipment on the following terms:
(i) Subject to paragraph (ii), where Equipment is damaged, the Customer must pay to Elixir on demand the cost of repair as determined by Elixir at its absolute sole discretion.
(ii) If the Equipment is Unrecoverable Equipment, the Customer must pay to Elixir the cost of replacing the Unrecoverable Equipment with new Equipment. This clause 10(d)(ii) is a continuing obligation and survives the termination of this agreement. The Customer agrees that this clause and the cost of replacing the Unrecoverable Equipment with new Equipment is a genuine pre-estimate of damages. This means that the Customer understands and agrees that when Elixir has to replace Unrecoverable Equipment the Customer will have to pay for new Equipment and that the Customer agrees to pay for the cost of new Equipment.
(e) In all instances, the Equipment remains the property of Elixir and the Customer must return the Equipment to the Premises.
11. CLAIMS AND LIMITATION OF LIABLIITY
(a) The Customer must:
(i) promptly inform Elixir of all complaints or claims relating to any of the Products;
(ii) not admit liability on behalf of Elixir in respect of any complaint or claim relating to any of the Products;
(iii) not resolve or settle any complaint or claim relating to any of the Products which may result in Elixir incurring any liability (whether to a customer, the Customer or any other person); and
(iv) deal promptly with all complaints or claims relating to any of the Products, which will not result in Elixir incurring any liability.
(b) Subject to clause 10(c):
(i) all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Products; and
(ii) the Customer releases Elixir from any liability for legal costs and disbursements and, without limitation, any indirect or consequential expense, loss or damage, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses suffered by the Customer under or in connection with the Contract.
(c) The Australian Consumer Law provides Consumers with a number of consumer guarantees, as that term is used in the Australian Consumer Law (Consumer Guarantees) that cannot be excluded or limited. The limitations of liability set out in these Terms (including under clause 9(d) and 10(b) are therefore subject to, and will not apply to the extent that they limit or exclude, such Consumer Guarantees applicable to Consumers. However where the Australian Consumer Law permits Elixir to limit the remedies available to it for a breach of a Consumer Guarantee, Elixir may limit its liability in the Particular Conditions in the manner permitted by the Australian Consumer Law.
(a) Elixir may terminate:
(i) the terms of credit provided to the Customer;
(ii) any Order; or
(iii) the Contract in its entirety,
by written notice to the Customer if the Customer:
(A) is late in the payment of an invoice by more than 5 days;
(B) fails to pick up the Products where Delivery is being effected under clauses 4(a)(i) or 4(a)(ii);
(C) a direct or indirect change of control or ownership in (part of) the Customer occurs
(D) breaches these Terms in a material respect (in any manner not covered by paragraph (A), (B) and (C)) and, in the reasonable opinion of Elixir, the breach:
(1) cannot be remedied; or
(2) can be remedied, but is not remedied by the Customer within 5 Business Days after Elixir gives the Customer notice of the breach; or
(E) suffers an Insolvency Event.
(b) The Customer may terminate an Order or the Contract if Elixir:
(i) breaches these Terms in a material respect and, in the reasonable opinion of the Customer, the breach:
(A) cannot be remedied; or
(B) can be remedied, but is not remedied by the Customer within 5 Business Days after the Customer gives the Customer notice of the breach; or
(ii) suffers an Insolvency Event.
(c) The Customer must, within 5 Business Days after the date of expiry or termination:
(i) pay Elixir all amounts it owes Elixir, whether due at that time or not; and
(ii) return all Confidential Information to Elixir.
(d) Termination or expiration of an Order, terms of credit or the Contract does not affect a party’s accrued rights and remedies, which remain unaffected.
13. FORCE MAJEURE
(a) Elixir is not liable for any failure to perform any of its obligations under these Terms as a result of any event beyond its reasonable control including, without limitation, where Elixir is prevented or hindered from manufacturing or supplying the Products as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. In such circumstances, Elixir may suspend performance of any obligations under these Terms while the event continues. Elixir shall not incur any liability to the Customer in respect of such suspension.
(b) If any of the above events occur for more than 30 days, Elixir may, without liability, terminate any affected Order and/or the Contract immediately by notice in writing to the Customer.
The Customer indemnifies Elixir and its Representatives and Related Bodies Corporate against any Loss which Elixir suffers, incurs or is liable for in connection with the Contract including, but not limited to:
(a) any act or omission of the Customer or the Representatives of the Customer;
(b) any breach of the Contract by the Customer; and
(c) enforcing any security interest arising in connection with the Contract.
15. CONFIDENTIAL INFORMATION
(a) In this clause 15, Confidential Information means confidential information, trade secrets, know-how, scientific, technical, product, market or pricing information relating to the Products or Elixir’s business or any business of a Related Body Corporate of Elixir.
(b) The Customer is authorised to use the Confidential Information for the sole purpose of using or selling the Products supplied under these Terms and must not otherwise use or disclose any Confidential Information.
16. PRIVACY ACT 1988
(a) The Customer consents to Elixir obtaining from a credit-reporting body a credit report containing personal credit information about the Customer in relation to credit provided by Elixir.
(b) The Customer agrees that Elixir may exchange information about the Customer with those credit providers named in the relevant Credit Application account or named in a consumer credit report issued by a credit reporting body for the following purposes:
(i) to assess an application by the Customer;
(ii) to notify other credit providers of a default by the Customer;
(iii) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
(iv) to assess the credit worthiness of the Customer.
(c) The Customer consents to Elixir being given a consumer credit report to collect overdue payment on commercial credit.
(d) The Customer agrees that personal information provided by the Customer may be used and retained by Elixir for the following purposes and for other purposes as may be agreed between the Customer Elixir or required by law from time to time:
(i) the provision of goods and services;
(ii) the marketing of goods or services by Elixir, its agents or distributors in relation to Elixir’s goods and services;
(iii) analysing, verifying or checking the Customer’s credit, payment and status in relation to provision of goods and services;
(iv) processing of any payment instructions, direct debit facilities and credit facilities requested by the Customer; and
(v) enabling the daily operation of the Customer’s account and the collection of amounts outstanding in the Customer’s account in relation to the Products.
(e) Elixir may give information about the Customer to a credit reporting body for the following purposes:
(i) to obtain a consumer credit report about the Customer; and
(ii) to allow the credit reporting body to create or maintain a credit information file containing information about the Customer.
If any provision of the Contract or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of the Contract shall not in any way be affected or impaired.
18. VARIATION AND ASSIGNMENT
The Contract may be varied by agreement between the parties in writing only. The Customer may not assign its rights under the Contract without Elixir’s prior written consent.
19. GOVERNING LAW
The Contract is governed by the law of the State of Victoria. Elixir and the Customer submit to the non-exclusive jurisdiction of the courts of the State of Victoria, Australia.
Waiver by Elixir of a breach of the Contract or of any right or power arising on a breach of the Contract must be in writing and signed by Elixir. A right or power created or arising on a breach of the Contract is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.
21. RIGHT TO OFFSET
Elixir may set off from any amounts it owes to the Customer any amounts the Customer owes to Elixir.
22. INTELLECTUAL PROPERTY
(a) The purchase of Products under the Contract does not confer on the Customer any licence or assignment of any copyright, patent, design or trademark, or any other intellectual property right (whether registered, registrable or not) that subsists in the Products.
(b) The parties acknowledge and agree that nothing in the Contract affects any of the Intellectual Property Rights held by Elixir (including any trade marks, logos etc held by Elixir). Other than for the sole purpose of on-supply or use of the Products in the ordinary course of the Customer’s business, the Customer must not use Elixir’s Intellectual Property Rights without Elixir’s express written permission which may be withheld at Elixir’s discretion. In particular, the Customer must not use Elixir’s Intellectual Property Rights to promote the Customer’s business or to represent in any way that the Customer is associated with or in any way acts on behalf of Elixir (whether as agent, dealer, reseller or otherwise).
(c) Where Elixir has designed or drawn Products for the Customer, then the copyright in those designs and drawings remain vested in Elixir, and may only be used by the Customer at Elixir’s discretion.
(d) Where any designs or specifications have been supplied by the Customer for manufacture by or to the order of Elixir then:
(i) the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Products does not infringe the rights of any third party (including their Intellectual Property Rights);
(ii) Elixir does not assume any responsibility or liability for any claim or infringement brought against the Customer, the Customer’s successors, designate, customer or user of the Products in respect of any claim made against the Customer for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the supply or use of the Products; and
(iii) the Customer shall indemnify, and hereby does indemnify and hold Elixir harmless against any claims, Loss or liability for infringement and/or misappropriation of any patent, trademark, copyright, design right trade secret, or any other right (including any Intellectual Property Right), on account of such manufacture.
23. CONFIDENTIALITY & PPSA
Subject to section 275(7) of the PPS Act, neither party will disclose information of the kind mentioned in section 275(1) of the PPSA.
24. ENFORCEMENT OF SECURITY INTEREST
If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under the Contract, the Customer agrees that the following provisions of the PPSA will not apply:
(a) section 95 (notice of removal of accession), to the extent that it requires Elixir to give a notice to the Customer;
(b) section 121(4) (enforcement of liquid assets – notice to Grantor);
(c) section 130 (notice of disposal), to the extent that it requires Elixir to give a notice to the Customer;
(d) paragraph 132(3)(d) (contents of statement of account after disposal);
(e) subsection 132(4) (statement of account if no disposal);
(f) section 135 (notice of retention);
(g) section 142 (redemption of collateral); and
(h) section 143 (reinstatement of security agreement).
25. NOTICES UNDER THE PPSA
Elixir does not need to give the Customer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
26. FURTHER ASSURANCES
If at any time:
(a) Elixir determines that the PPSA applies, or will at a future date apply, to the Contract or any of the transactions contemplated by the Contract; and
(b) In the reasonable opinion of Elixir, the PPSA adversely affects or would adversely affect the security position, or the rights of Elixir under or in connection with the Contract or the Products or compliance with the PPSA is necessary or advisable for Elixir to maintain a first priority perfected security interest in the Products or any other personal property of yours under applicable law,
then the Customer must, upon Elixir’s request, cause the Contract and/or the security interest or ownership interests created under the Contract, to be registered with the applicable registry in accordance with and to the extent possible under the PPSA and must cause all other filings and recordings necessary or advisable under the PPSA and all such other action (including amending the Contract) required under the PPSA to be effected and taken, in order to maintain, protect and perfect the respective right, title and interests of Elixir thereunder. All costs and expenses arising as a result of actions taken pursuant to this clause 26 will be for the account of the Customer.
27. BENEFIT OF CONTRACT
Elixir holds the benefit of the Contract for itself and on trust for each of its Representatives and any Related Bodies Corporate.
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