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Terms and Conditions of Purchase

  1. Application of this document

    1. Subject to any terms prescribed by law, this document together with the relevant Purchase Confirmation embodies the sole terms and conditions of the Contract between YellowChip Funds Group and the Seller and supersedes all other conditions and agreements between the parties, unless expressly amended in writing by YellowChip Funds Group.
    2. This document will without further notice apply to all future transactions between YellowChip Funds Group and the Seller in relation to the purchase by YellowChip Funds Group of goods and/or services from the Seller, whether or not this document is delivered or executed in the course of the transaction.
    3. For the avoidance of doubt, none of the terms and conditions contained in any document or other instrument supplied by or on behalf of the Seller (including, without limiting the foregoing, those included in any quote, sales confirmation, invoice or like document from the Seller) will apply to or form part of the Contract, except and to the extent otherwise agreed in writing by YellowChip Funds Group.
    4. All quotes supplied by the Seller are subject to acceptance by YellowChip Funds Group and no Contract between YellowChip Funds Group and the Seller comes into existence until YellowChip Funds Group issues a Purchase Confirmation in relation to the goods and/or services.
    5. No variation or abrogation of these terms and conditions will be effective unless it is evidenced in writing signed on behalf of YellowChip Funds Group.
    6. The Seller acknowledges and agrees that YellowChip Funds Group may issue a Purchase Confirmation and enter into the Contract as principal or agent. Where YellowChip Funds Group issues a Purchase Confirmation or enters into the Contract as agent for some other person (irrespective of whether that agency is disclosed or otherwise), the Seller is not entitled to make any objection to that or dispute the right and authority of the principal to enforce it rights under the Contract.

  2. Payment

    1. Unless otherwise agreed by the parties in writing, payment will be made by YellowChip Funds Group within 30 days of the end of month of receipt of the Seller’s invoice for the goods and/or services. The price stated in the Seller’s invoice much match the price in the Purchase Confirmation and be inclusive of all costs, expenses, fees and claims in connection with the supply of the goods and/or services.
    2. YellowChip Funds Group may set-off any monies payable to the Seller against any monies payable by the Seller to YellowChip Funds Group, including any costs, charges, damages, debts, claims and expenses owed or which may be payable by the Seller on any account whatsover. This does not limit YellowChip Funds Group’s rights to recover amounts due to it in other ways.

  3. Packaging and Delivery

    1. The Seller must ensure that the goods are suitably packed to avoid damage in transit or storage. Packages must be marked with the Purchase Confirmation number, description of items and contents, destination, quality, date, method of dispatch and weight of each package.
    2. The Seller must deliver the goods to the delivery address by the delivery date stated in the Purchase Confirmation. Time is of the essence.
    3. The Seller must not interfere with YellowChip Funds Group’s activities at the delivery address and be aware of and ensure that the Seller and its employees, contractors and agents perform their work and tasks safely and comply with all laws, site procedures and all lawful directions of YellowChip Funds Group and its employees, contractors and agents.
    4. YellowChip Funds Group may direct the Seller to remove any of the Seller’s personnel from the any YellowChip Funds Group premises and the Seller must comply with that direction.
    5. YellowChip Funds Group will be deemed to have accepted the goods if within 21 days after the date of delivery of the goods to YellowChip Funds Group, YellowChip Funds Group has not rejected the goods or part of the goods for failure to comply with the requirements of this Contract and the Purchase Confirmation in all respects. If YellowChip Funds Group rejects the goods, YellowChip Funds Group will return the goods to the Seller and the Seller must promptly provide replacement goods. All costs incurred by YellowChip Funds Group in relation to the rejection, return shipping and replacement of the goods will be reimbursed by the Seller upon demand. Acceptance of or payment for any goods by YellowChip Funds Group does not affect or waive any rights which YellowChip Funds Group may have under the Contract or at law.

  4. Risk and Title

    1. Risk in and title to the goods pass to YellowChip Funds Group upon the earlier of:
      1. acceptance of the goods in accordance with clause 3)e); and
      2. payment for the goods in full.
    2. The Seller and YellowChip Funds Group agree that the provisions of this clause apply notwithstanding any agreement between the parties under which YellowChip Funds Group is granted credit by the Seller.

  5. Warranties and Exclusions of Liability

    1. The Seller warrants that the goods when delivered to YellowChip Funds Group will comply with any description for the goods contained in the relevant Purchase Confirmation, the Standard Specifications and with the information otherwise provided by the Seller and the original equipment manufacturer in respect of the goods. YellowChip Funds Group is not required to accept goods with any specification or characteristics that are outside any such description for the goods.
    2. The Seller acknowledges, agrees, represents and warrants that:
      1. upon delivery, the goods will be free of any security interests or encumbrances;
      2. the goods will have the condition, characteristics, quality and attributes that will make them suitable or fit for any ordinary or special purpose required for those goods;
      3. the goods will be new and of merchantable quality, unless otherwise specified in the Purchase Confirmation;
      4. the goods will be provided with the professional skill, care and diligence of a competent supplier;
      5. services will:
        1. accord with the requirements of the Contract;
        2. be performed by appropriately qualified and trained personnel;
        3. be performed to Industry best practice; and
        4. be fit for the purpose or purposes described in the Contract and for which such types of services are commonly provided and be free of restrictions in relation to use by YellowChip Funds Group.
      6. the Seller has or will in a timely manner conduct all mandatory or prudent tests and apply all mandatory or prudent quality control checks and procedures to ensure the goods and any product that is produced from them will be without defect and suitable or fit for any purpose required for them; and
      7. the Seller has not relied upon any statement, representation, warranty, guarantee, condition, advice, recommendation, information, assistance or service provided or given by YellowChip Funds Group or anyone on its behalf in respect of the goods, other than those that are expressly contained in the Contract.
    3. YellowChip Funds Group must receive the benefit of any warranties provided by manufacturers of the goods or materials or other components which are used in the performance of the Seller’s supply where title in the goods or materials ultimately passes to YellowChip Funds Group.
    4. To the extent permitted by law, YellowChip Funds Group will have no liability to the Seller, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of revenue, loss of profit (whether direct or indirect), loss of cost saving, or loss of business opportunity or reputation (Consequential Loss) arising out of or in connection with the Contract or its performance.

  6. Indemnity and Insurances

    1. The Seller indemnifies YellowChip Funds Group against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims of death, personal injury, damage to property and Consequential Loss which may be made against YellowChip Funds Group or which YellowChip Funds Group may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the goods, provision of the services, breach of the Contract by the Seller or the willful misconduct or negligence of the Seller or its officers, employees, contractors or agents unless such costs, claim, demand, expense or liability will be directly and solely attributable to any negligence of YellowChip Funds Group or its duly authorised employee or agent.
    2. The Seller must maintain at all times:
      1. workers’ compensation insurance as required by applicable laws;
      2. product and public liability insurance for at least $​20,000,000 for any single occurrence;
      3. marine and transit insurance;
      4. professional indemnity insurance for at least $​5,000,000 if providing services; and
      5. any other insurance specified on the Purchase Confirmation.
    3. The Seller’s insurances must name YellowChip Funds Group as a named insured and contain a waiver of subrogation in favour of YellowChip Funds Group.

  7. Licenses and Duties

    1. Except to the extent of taxes (including GST) for which YellowChip Funds Group is required by law to be liable, the payment of any taxes and the obtaining and maintenance in full force and effect of any necessary export or import licenses, authorisations or consent in respect of the goods and/or services is the sole responsibility of the Seller. YellowChip Funds Group will be under no liability whatsoever in respect of goods exported or imported or services provided without any necessary licenses, authorisations or consent.

  8. Goods and Services Tax (GST)

    1. For the purposes of this clause 8), “Supplier” has the meaning given in this clause 8) and the terms, “GST”, “GST law”, “Supply” and other capitalised terms used but not otherwise defined in this clause have the meanings given to them by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time) or any replacement or other relevant legislation and regulations, except that “GST law” also includes any other legislation enacted to validate, recapture or recoup tax collected as GST.
    2. Unless otherwise stated, all amounts payable (including non-monetary consideration) by the recipient of a Supply (Recipient) to the party making the Supply (Supplier), howsoever described in the Contract do not include GST.
    3. If a Supply under this Contract is subject to GST, the Recipient must pay to the Seller an additional amount equal to the amount payable in relation to that Supply multiplied by the prevailing GST rate.
    4. The additional amount under paragraph 8)c) is payable at the same time as the amount payable in relation to the Supply is payable or to be provided.
    5. Any additional amount payable in accordance with paragraph 8)d) need not be paid until the Seller provides a Tax Invoice to the Recipient.
    6. If the amount of GST paid is more than is required under the GST law the Seller will refund the excess amount to the Recipient. If the amount of GST paid is less than is required under the GST law, the Recipient will pay the Seller the difference. For the purposes of calculating further variations under this clause, any additional amount referred to in paragraph 8)c) is taken to be amended by the amount of any earlier variation made under this clause 8).
    7. If a party to the Contract is entitled to be reimbursed or indemnified for a cost incurred by a party in accordance with the Contract, the amount of the reimbursement or indemnity will not exceed the GST exclusive cost of the amount. For the avoidance of doubt, the amount of any reimbursement or indemnity does not include any amount attributable to GST for which the party seeking reimbursement is entitled to an Input Tax Credit.
    8. If a party to this Contract is a member of a GST Group, references to GST which the party must pay, and to Input Tax Credits to which the party is entitled, include GST which the representative member of the GST Group must pay and Input Tax Credits to which the representative member is entitled.

  9. Termination

    1. In addition to any other rights it may have under the Contract or otherwise, YellowChip Funds Group may immediately terminate a Purchase Confirmation and Contract by notice in writing to the Seller:
      1. if the Seller becomes bankrupt or insolvent or is otherwise financially unable to perform the Contract;
      2. if the Seller fails to provide the goods and/or services by any of the dates set out in the Contract;
      3. if the Seller fails to remedy a breach of any other term or condition of the Contract within 5 Business Days of being directed in writing to do so by YellowChip Funds Group; or
      4. in its absolute discretion at any time and for any reason by giving the Seller 14 days written notice.
    2. If YellowChip Funds Group issues a notice under this clause 9)a)a)iv), YellowChip Funds Group will only be liable for payments to the Seller for the goods and/or services provided in accordance with the Contract up until the date of termination and any reasonable costs incurred by the Seller that are directly attributable to the termination and which the Seller substantiates to the satisfaction of YellowChip Funds Group. The Seller must promptly deliver to YellowChip Funds Group any goods and materials that YellowChip Funds Group has paid for. The Seller will not be entitled to any profit anticipated on any part of the Contract terminated.
    3. Immediately upon the termination of this Contract, the Seller will:
      1. cease the provision of the goods; and
      2. provide to YellowChip Funds Group all confidential information, any items in respect of which intellectual property rights are held by YellowChip Funds Group, and any property, including records or information, belonging to YellowChip Funds Group or relating to the goods.

  10. Confidential Information, IP and Computer Software

    1. Where the Seller has access to any of YellowChip Funds Group’s confidential information, the Seller must:
      1. keep the confidential information confidential; and
      2. not (except to the extent required by Law) disclose it to any person without the prior written consent of YellowChip Funds Group.
    2. The Seller assigns and transfers all intellectual property rights created by the Seller in supplying the goods to YellowChip Funds Group upon creation. The Seller warrants that it will not infringe any third party intellectual property rights in providing the goods.
    3. Where the goods and/or services incorporate or use computer software, the Seller warrants that:
      1. the software is free from viruses, trojan horses, bugs, worms or any other defects that are intended to, or do, damage or interfere with the proper working of the software;
      2. any software maintenance, upgrade, patch or fix supplied by the Supplier for the software will comply with subparagraph (i) and will be compatible with the existing version of the software; and
      3. the Company’s use of the software will not infringe the intellectual property or moral rights of any person.

  11. Where property is provided to Seller

    1. The Seller agrees that:
      1. the Seller holds any property as fiduciary bailee of YellowChip Funds Group;
      2. the property will be stored and retained separately from other goods or property stored at premises owned or controlled by the Seller so as to be readily identifiable as the property of YellowChip Funds Group;
      3. the Seller will not allow or cause:
        1. the property to become an accession to any other items or property or to lose their separate identifiable character or to be co-mingled with other items or property, in any way, either by any process of its own or by a third party, except as required by the Contract or with YellowChip Funds Group’s prior written consent;
        2. any identifying mark or number on any of the property to be removed, defaced or obliterated; or
        3. the property to be stored with any other items or property containing any poisonous, harmful or toxic chemicals, powders or liquids.
      4. the Seller has no right or claim to any interest in the property to secure any liquidated or unliquidated debt or obligation YellowChip Funds Group owes to the Seller;
      5. the Seller cannot claim any lien over the property;
    2. The Seller will observe all directions and instructions given to it by YellowChip Funds Group in relation to the property as notified from time to time and undertakes that it will at all times keep the property safe and secure, and protected from deterioration, harm and damage.
    3. The Seller must mark or display the property in a manner reasonably satisfactory to YellowChip Funds Group and which indicates that title to the property remains vested with YellowChip Funds Group and the Seller will at all times:
      1. retain any mark or label affixed to any item of the property by YellowChip Funds Group prior to its delivery to the Seller; or
      2. display any property not marked or labelled in accordance with paragraph (i) above in a position or conditions pre-approved by YellowChip Funds Group and which bears a sign to the effect that, ‘All contents are the property of YellowChip Funds Group Pty Ltd’.
    4. The Seller will keep proper books of account and proper detailed and accurate records (including without limitation computer records) of property and will provide YellowChip Funds Group with a prompt response to YellowChip Funds Group’s notice regarding property and such assistance as YellowChip Funds Group may reasonably require to carry out inspection of the property.
    5. YellowChip Funds Group or its representatives may enter upon any premises where the property is located at any time during normal business hours upon reasonable notice to the Seller for the purposes of inspecting the property to inspect the Seller’s compliance with the Contract and the requirements of YellowChip Funds Group.
    6. The Seller will make no representations or warranties with respect to the property except as authorised in writing by YellowChip Funds Group.
    7. The risk of loss or damage to the property will pass to the Seller upon delivery of the property to the Seller.
    8. Property in and title to the property will remain with YellowChip Funds Group at all times.
    9. The Seller must provide YellowChip Funds Group with 5 days prior written notice of any proposal to move the property from premises owned or controlled by the Seller to another location.
    10. The Seller must inform YellowChip Funds Group within 24 hours if the property is stolen, lost, co-mingled or damaged in any way.
    11. The Seller must insure the Goods for their full insurable or replacement value (whichever is higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Seller carries on business. Such insurances must include YellowChip Funds Group as a named insured and must contain a waiver of subrogation in favour of YellowChip Funds Group.
    12. If the Seller fails to yield up any property to YellowChip Funds Group when required, YellowChip Funds Group may recover possession of all property at any site owned, possessed or controlled by the Seller and the Seller agrees that YellowChip Funds Group has an irrevocable licence to do so without incurring any liability to the Seller or any person claiming through the Seller.
    13. The Seller indemnifies YellowChip Funds Group against all loss or damage as a result of breach of the Contract by the Seller or as a result of unauthorised warranties or representations by the Seller to third parties, and indemnifies and holds YellowChip Funds Group harmless from any and all claims demands, suits or liabilities arising out of any such acts or omissions of the Seller, its employees, appointees, legal representatives and agents.

  12. Personal Property Securities Act

    1. In this clause, unless the context otherwise requires:
      1. “Attaches” has the same meaning as given to that term in the PPSA.
      2. “Collateral” has the same meaning as given to that term in the PPSA.
      3. “Financing Statement” has the same meaning as given to that term in the PPSA.
      4. “Financing Change Statement” has the same meaning as given to that term in the PPSA.
      5. “Perfected” has the same meaning as given to that term in the PPSA.
      6. PPS Law means:
        1. the PPSA;
        2. any regulation made pursuant to the PPSA; and
        3. any other legislation or regulation made to implement, or contemplated by, any PPSA law referred to in paragraph (1) or (2).
      7. “PPSA” means the Personal Property Securities Act 2009 (Cth).
      8. “Purchase Money Security Interest” has the same meaning as given to that term in the PPSA.
      9. “Security Interest” means:
        1. any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power, or title retention arrangement;
        2. a security interest as defined in the PPSA; or
        3. any document that grants or creates anything referred to in either paragraphs (a) or (b) of this definition and any other thing which gives a creditor priority over any other creditor with respect to any asset or an interest in any asset.
      10. “Verification Statement” has the same meaning as given to that term in the PPSA.
    2. If at any time YellowChip Funds Group determines that a PPS Law applies to any Contract or the possession and use of any property (Arrangements), then the Seller must promptly upon request from YellowChip Funds Group do anything (including obtaining consents, making amendments to the Arrangements or executing new Arrangements):
      1. for the purposes of ensuring that any Security Interest created under, or provided for by, the Arrangements:
        1. attaches to the Collateral that is intended to be covered by that Security Interest;
        2. is enforceable, Perfected, maintained and otherwise effective; and
        3. has the priority contemplated by those Arrangements; or
      2. to enable YellowChip Funds Group to prepare and register a Financing Statement or Financing Change Statement; or
      3. to enable YellowChip Funds Group to exercise any of its powers in connection with any Security Interest created under, or provided by, the Arrangements.
    3. The Seller must provide any information requested by YellowChip Funds Group in connection with the Arrangements to enable YellowChip Funds Group to exercise any of its powers or perform its obligations under the PPS Law.
    4. Except if section 275(7) of the PPSA applies, each of YellowChip Funds Group and the Seller agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available to a person or entity not a party to this Agreement.
    5. Anything that is required by YellowChip Funds Group to be done under this clause must be done by the Seller at its own expense. The Seller agrees to reimburse the costs of YellowChip Funds Group in connection with any action taken by YellowChip Funds Group under or in connection with this clause including, without limitation, registering a Financing Statement or Financing Change Statement or enforcing any Security Interest under, or provided for by, the Arrangements.
    6. The Seller must not represent to any third parties that it is in any way acting for YellowChip Funds Group and YellowChip Funds Group will not be bound by or liable under any contracts or arrangements with third parties unless otherwise agreed in writing.

  13. Force Majeure

    1. YellowChip Funds Group will not be under any liability whatsoever for the consequences of any failure on its part to perform or delay in performing any obligation under the Contract when due, whilst and to the extent that such failure or delay is due directly or indirectly to any event of force majeure. “event of force majeure” includes any acts of God, war, riots, strikes, lock outs, trade disputes, fires, break downs, mechanical failures, pandemic, border closures, interruptions of transport, Government action or any other cause whatsoever, whether or not of a like nature to those specified above, outside the reasonable control of YellowChip Funds Group.
    2. If there is an event of force majeure, YellowChip Funds Group will notify the Seller of the event and the likely impact on its performance under the Contract. If the event affects the capacity of YellowChip Funds Group to complete its material obligations under the Contract in a timely manner, YellowChip Funds Group may by notice to the Seller terminate the Contract without any liability whatsoever on its part arising from such termination.

  14. General

    1. Any notice to be given to the Seller will be deemed to be given upon its being posted, emailed or sent by facsimile to the address or facsimile number of the Seller set out in the Contract or to the Seller’s registered office or to the Seller’s last known address.
    2. The Seller may not assign or transfer or purport to assign or transfer any of its rights or obligations under or in connection with the Contract to any other person or corporation whatsoever.
    3. All Contracts made between YellowChip Funds Group and the Seller will be governed by and construed in accordance with the laws of Queensland, Australia. The Seller agrees to submit to the non-exclusive jurisdiction of the Queensland Courts and Courts of Appeal therefrom for all purposes of or in connection with such Contracts.
    4. Any part of the Contract which is held to be unenforceable or unlawful by a court of competent jurisdiction is severed and the remaining provisions will continue to operate.
    5. The relationship of the parties is one of principal and independent contractor only.
    6. The Seller must not subcontract the supply of the goods and/or services without the prior written consent of YellowChip Funds Group.

  15. Interpretation

    1. In the Contract, unless inconsistent with the context:
      1. YellowChip Funds Group means:
        1. YellowChip Funds Group Pty LTD (A.C.N. 613 031 520) or such other company related to YellowChip Funds Group Pty Limited which accepts the Seller’s quote by the issue of a Purchase Confirmation; or
        2. the undisclosed principal on whose behalf YellowChip Funds Group may enter into a Contract as agent and includes any of their respective employees, agents, assignees or nominees;
      2. Contract means the contract between YellowChip Funds Group and the Seller for or in relation to the sale or provision by the Seller and purchase or receipt by YellowChip Funds Group of goods and/or services on the terms and conditions of this document and the Purchase Confirmation;
      3. goods means any item of whatsoever nature which is sold or to be sold to YellowChip Funds Group by the Seller;
      4. Purchase Confirmation means the document so named issued by YellowChip Funds Group that sets out the goods and/or services ordered from the Seller and other relevant requirements;
      5. Property means any property of YellowChip Funds Group which is provided to the Seller under a Contract;
      6. Seller means the person or corporation who sells or has agreed to sell the goods and/or provide the services to YellowChip Funds Group;
      7. Services means any services of whatsoever nature which are provided or to be provided to YellowChip Funds Group by the Seller;
      8. Standard Specifications means YellowChip Funds Group’s standard specification for the goods current at the time the goods are purchased from the Seller. Copies of the Standard Specifications are available on request from YellowChip Funds Group;
      9. Words importing the singular number will be deemed to include the plural and vice versa;
      10. Words importing the male gender will be deemed to include the female and neuter gender and vice versa; and
      11. The headings in these terms and conditions are provided for convenience only and do not affect the interpretation thereof.

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The content on this website has been prepared by YellowChip Funds Group Pty Ltd (YCFG) ACN 613 031 520 AFSL 494364 and YellowChip Investment Management Pty Ltd (YCIM) ACN 680 180 081 CAR 001311088, collectively known as YellowChip. Quay Wholesale Fund Services Pty Ltd (Quay) ACN 647 044 602 AFSL 528526 is the Trustee for the YellowChip Trusts. YCIM is the Investment Manager. Any information or advice contained on this website is general in nature and has been prepared without taking into account your objectives, financial situation or needs. Before acting on any information or advice on this document, YellowChip and Quay recommends you consider the appropriateness of the information and advice having regard to your circumstances. You must also read the offer document and any other disclosure documents in full before acquiring products named in these documents. You should also seek independent financial advice prior to deciding to invest in, or continuing to hold, any financial product. Refer to the Information Memorandum (IM) for more information. All investments, including those managed by YellowChip and Quay, involve risk which can lead to no or lower than expected returns, or a loss of part or all of your capital.

The content is proprietary to us. Although we believe the material is correct, no warranty of accuracy, reliability or completeness is given, except for liability under statute which cannot be excluded.

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