Terms & Conditions
Terms and Conditions of Sale and Service of the St. Killian Candle Burning System.
“ACL” means the Australian Consumer Law;
“Candelabra” means the unit supplied by the Seller to the Purchaser which holds the Glass Fittings;
“Confidential Information” means any information and data however recorded and preserved of a confidential and proprietary nature and including but not limited to trade secrets, inventions, technology, passwords, software, formulae, techniques, processes, operations, customer lists, financial information, forecasts, analyses, compilations, sales and marketing plans, reports, interpretations, studies, drawings, Intellectual Property Rights, designs, configurations and experiments communicated by either Party to the other Party and whether furnished orally or in writing or gathered by inspection, learned through observation or disclosed at any presentation and regardless of whether specifically identified as confidential;
“Financing Statement” means a financing statement registered on the personal property securities register to register a Security Interest;
“Glass Fittings” means the glass holders which sit on the Candelabra and which house the St. Killians Candles which are the subject of European Patent 2210038;
“Intellectual Property Rights” means copyright, design rights (whether registered or unregistered); all rights in inventions (whether patentable or not), patent applications, patents; Know How, Confidential Information; trademarks, trade names, business names, domain names and all goodwill acquired in relation to same and all rights of an equivalent nature whether registered or registerable and which exist now or in the future anywhere in the world and which is owned by or licensed to Seller and/or which otherwise subsists in the Candelabra and/or Glass Fittings and/or St. Killians Candles;
“Know-How” means the processes, techniques and methods of working of a secret, confidential or proprietary nature which have been or are being developed and includes all scientific, engineering, information, expertise and manufacturing design;
“Parish” is the parish listed on the Invoice;
“Parish Priest” is the parish priest listed on the Delivery Docket;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“Purchase Price” means the amount specified on the Invoice;
“Purchaser” means the Parish Priest for the time being and from time to time of the Parish where the church in which the St. Killian Candle Burning System is to be installed is located;
“Security Interest” means a security interest in accordance with the PPSA;
“Seller” means Saint Killian Candle Company AUS PTY LTD (ACN: 620 321 815) of Suite 1, 4-8 Angas Street, Kent Town, South Australia 5067;
“St. Killians Candles” means the candles manufactured, distributed and/or supplied by the Seller; and
“St. Killian Candle Burning System” means the Candelabra, the Glass Fittings and the St. Killians Candles.
- Upon full and final payment of the Purchase Price by the Purchaser to the Seller, the Purchaser shall acquire all right, title and interest in and to the Candelabra and St. Killians Candles but not acquire any right, title or interest in or to the Glass Fittings. All right, title and interest in and to the Glass Fittings shall always remain with the Seller and under no circumstances shall the title to the Glass Fittings transfer to the Purchaser or to any other third party. For the avoidance of doubt under no circumstances shall the Purchaser transfer the Glass Fittings to third parties or otherwise deal in the Glass Fittings other than as permitted by this Agreement.
- The Purchaser grants to the Seller a Security Interest over the Glass Fittings and/or other Security Interests and acknowledges that the Seller may register a Financing Statement to protect its title in the Glass Fittings and/or other Security Interests.
- Nothing in this Agreement shall have the effect of assigning any Intellectual Property Rights to the Purchaser or its employees, contractors and/or agents and/or the Purchaser’s congregation or any third parties.
- The Seller grants the Purchaser a non-exclusive, limited licence to use the Glass Fittings in accordance with the terms of this Agreement.
- This Agreement shall commence on the earlier of: execution of this Agreement; and/or the Purchaser issuing a purchase order; and/or delivery of any part of the St. Killian Candle Burning System to the Purchaser, and it shall expire on payment by the Purchaser of the total Purchase Price for the items of the St. Killian Candle Burning System purchased specified in the purchase order. A new Agreement based on these terms and conditions will come into force each time the Purchaser issues a purchase order to the Seller for any item of the St. Killian Candle Burning System and terminate on full and final payment of the Purchase Price.
- The Purchaser grants the Seller a licence during the term of this Agreement to enter the church where the Glass Fittings are situated or any other premises owned, occupied or controlled by the Purchaser where the Glass Fittings are situated to enable the Seller to maintain, clean, remove and/or replace the Glass Fittings.
- The Seller will supply the St. Killians Candles to the Purchaser from the date of this Agreement at the Purchase Price specified in the Schedule. The Seller agrees not to increase this price of the St. Killians Candles for a period of twelve (12) months from the date of this Agreement. Subsequent increases in price shall be agreed between the Parties in writing.
- During the term of this Agreement the Purchaser shall only use the St. Killians Candles supplied by the Seller and the Purchaser acknowledges that to do otherwise could compromise the safe use of the Candelabra and the burning of the St. Killians Candles without emitting smoke. If the Purchaser sources candles from another supplier for use in the Candelabra then the Seller shall be entitled to immediately terminate this Agreement and to remove all Glass Fittings from the premises where they are situated.
- The Purchaser shall not, during the term of this Agreement, in any way alter the Candelabra whether to the intent of using candles sourced from another supplier other than the Seller or for any other purpose.
- The Purchaser covenants and agrees that it shall not copy, alter and/or modify the Glass Fitting or any part thereof.
- The Seller shall have no liability for any direct, indirect and/or special losses/damages in contract, tort, equity, statute or otherwise incurred by the Purchaser or third party due to the Purchaser using candles from another supplier and/or altering the Candelabra and the Purchaser shall indemnify the Seller in such instances from any such loss/damage suffered by the Purchaser and/or a third party claiming against the Seller.
- This Agreement may be terminated at any time by either party by giving of one months’ prior written notice to the other of its intention to termination the Agreement. The Agreement may be terminated immediately by the Seller in circumstances where the Purchaser is found to be using candles for the Candelabra sourced from a supplier other than the Seller. The Purchaser is not prohibited from purchasing candles from other suppliers for burning in candelabras other than those Candelabras purchased from the Seller.
- On termination of the Agreement for any reason:
- the Seller will within 7 days, invoice the Purchaser for all items of the St. Killians Candle Burning System delivered or provided to the Purchaser but which have not yet been invoiced and the Purchaser will pay such invoice and all outstanding invoices (minus any credit notes which have been issued by the Seller to the Purchaser) within a further period of 30 days (unless the invoice is disputed in good faith);
- the Seller shall, at any time after termination, collect any St. Killians Candles which have been delivered or provided to the Purchaser but which have not been used by the Purchaser and issue a credit note to the Purchaser for such St. Killians Candles;
- the Seller may, at any time after termination, enter the church where the Glass Fittings are situated or any other premises owned, occupied or controlled by the Purchaser where the Glass Fittings are situated and shall remove the Glass Fittings from the Candelabra and take possession of the Glass Fittings;
- At the Seller’s sole election, the Seller may also repurchase from the Purchaser the Candelabra at the original price sold to the Purchaser;
- The licence granted pursuant to clause 4 above shall expire and the Purchaser shall immediately cease to use the Glass Fittings; and
- The Purchaser grants to the Seller a license to enter to the church or other buildings to collect any part of the St. Killians Candle Burning System.
- Subject to clauses 12 & 13 above, the Seller’s liability for any loss or damage including any direct, indirect, incidental, special and/or consequential losses/damages and however caused whether in tort, contract, statute or otherwise under this Agreement shall not exceed the Purchase Price (which the Parties agree satisfies the Sellers obligations of repairing and/or replacing of any faulty/unsatisfactory service/good) and each of the Parties acknowledges and agrees, that in agreeing to this Agreement it does not do so in reliance on any representation, warranty or other provisions except as expressly provided for this Agreement and any conditions, warranties, or other terms implied by statute, the ACL, or common law are excluded to the fullest extent permitted by law. Where the Purchaser is considered a “consumer” within the meaning of the ACL, the Seller gives the guarantees to the extent required by the ACL with respect to the supply of the St. Killian Candle Burning System.
- Nothing in this Agreement shall exclude or limit the Seller’s liability for death or personal injury caused by its negligence. nu
- This Agreement will bind and benefit each of the Purchaser’s and Seller’s successors and personal representatives.
- The Parties acknowledge and agree that some of the provisions of this Agreement shall survive the termination of the Agreement including without limitation; the provisions of clauses 3, 4, 6, 7, 9, 10, 11, 12 13, 14 & 15.
- The Parties agree that each Party has the power and capacity to enter into this Agreement to bind their respective Parties.
- The Parties agree that this Agreement shall not be read against the Seller simply because it drafted this Agreement;
- The Seller may assign/novate the benefit and burden of this Agreement without the consent of the Purchaser. The Purchaser may not assign, novate or transfer all or any part of its rights or obligations under this Agreement without the prior written consent of the Seller.
- Each of the Parties to this Agreement is an independent person and nothing contained in this Agreement, and no action taken by the Parties pursuant to this Agreement, shall be construed to imply that there is any relationship between the Parties of partnership or of principal/agent nor are the Parties hereby engaging in a joint venture, association or other co-operative venture, and accordingly neither of the Parties shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise, unless expressly permitted by the terms of this Agreement.
- This Agreement (and any documents referred to herein) may be executed in any number of counterparts, and by the Parties on separate counterparts, each of which so executed and delivered shall constitute an original, but all the counterparts shall together constitute one and the same instrument.
- If any of the provisions of this Agreement are judged to be illegal or unenforceable, the continuation in full force and effect of the remaining provisions will not be prejudiced unless the substantive purpose of this Agreement is then frustrated, in which case either Party may terminate this Agreement on written notice.
- This Agreement, together with any documents referred to in this Agreement, constitutes the entire agreement between the Parties relating to the subject matter of this Agreement and supersedes all prior communications, drafts, agreements, offers, representations, warranties, stipulations, undertakings and agreements of whatsoever nature, whether oral or written, between the Parties.
- No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the Parties by a director or other duly authorised representative of each of the Parties.
- The failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
- If a party is in dispute, it must notify the other party in writing of such matters in dispute (Dispute Notice) and allow the other Party 14 days to respond to the Dispute Notice. The parties agree, that individuals with the power to resolve the dispute shall meet in person or discuss by other means in good faith to try to resolve the dispute within 14 days of the Dispute Notice. If the dispute is not resolved within 14 days of the parties meeting/discussing the Dispute Notice, then the parties agree that the only course of action is to escalate the dispute by commencing proceedings in the Australian courts.
- This Agreement is governed by, and shall be construed in accordance with, Australian law and the Parties agree that the Australian courts shall have non-exclusive jurisdiction to settle any disputes which may arise out of or regarding this Agreement. Each of the Parties hereto hereby submits to such non-exclusive jurisdiction of the Australian courts.
Version September 2022