All goods and services purchased from the Company are supplied subject to the following terms and conditions:
1. Goods and Services Tax (‘GST’) Prices for all goods and services will be charged at the price prevailing of the time of order. Unless specified otherwise in writing, all figures and amounts are exclusive of GST. The Customer must pay GST (and any other Government impost) on the cost of the supply of any goods or services that the Company provides so that the net amount retained by the Company after payment of GST is the same as if the Company was not liable to pay GST in respect of that supply.
2. Payment (i) The Customer must pay for goods/services on or before collection/delivery or if the Customer has a current trading account with the Company, within 30 days from the end of the month during which collection/delivery occurs (ii) The Customer will pay all monies owing to the Company without deduction or set-off and the Customer may not retain any money owing to the Company notwithstanding any default or alleged default by the Company including the supply of defective or allegedly defective goods or delay or alleged delay in supply (iii) A certificate signed by a responsible officer of the Company shall be prima facie evidence of the amount owed to the Company by the Customer at the date of such certificate (iv) The Company is entitled at any time to set-off any monies owing to the Company by the Customer (including contingently) against any amount the Company owes to the Customer.
3. Default The Customer will be in default of this Agreement if: the Customer fails to make payments to the Company (on any account) when due or otherwise fails to comply with this Agreement or any other agreement between the Company and the Customer, if (in the Company’s reasonable opinion) there is a material adverse change in the Customer’s financial position, the Customer becomes bankrupt or commits an act of bankruptcy or enters into a scheme or arrangement or composition with the Customer's creditors or, being a Corporation if an administrator, liquidator, receiver or receiver and manager is appointed or if the Customer becomes incapable of managing its own affairs. Upon default, the Company may in its discretion do any one or more of the following:
(i) declare that all amounts owing to the Company are immediately due and payable, whereupon such amount must be paid by the Customer on demand;
(ii) if the default includes failure to pay money owed to the Company, the Company may charge interest on the amount of the invoice from the due date for payment until the date payment is made at the rate calculated as the aggregate of the rate charged by the Company’s principal bankers on unsecured overdrafts of $50,000.00 or less plus 2% per annum compounded annually;
(iii)withhold or suspend delivery of any further goods or provision of further services to the Customer;
(iv)repossess any goods delivered to the Customer that are not paid for;
(v) withdraw any discounted or concessional prices or rebates given on goods or services that are not paid for;
(vi)withdraw or suspend the credit facilities provided to the Customer;
(vii) terminate this Agreement and (or in the alternative) any other agreement or arrangement between the Company and the Customer;
(viii) exercise any other rights provided for this Agreement or at Law.
4. Reservation of Title (i) Even though goods are delivered to Customer by or on behalf of the Company, title does not pass to the Customer but remains with the Company until payment for such goods has been received in full. The Customer is granted a licence to dispose of goods supplied by the Company by retail sale in the normal course of the Customer’s business provided that the proceeds are held on trust by the Customer and deposited to a separate bank account and not mixed with other monies. Until the date of full payment the Customer must store the goods so that they are clearly identified as the property of the Company. If the Customer is in default of this Agreement (see clause 3) then the Company has the right (without giving notice) to retake possession of the goods and the Customer hereby authorises the Company and its representatives to enter into any of the Customer’s premises upon which the goods are housed or stored for the purpose of retaking possession and the Company will not be liable for any costs, loss, damages incurred or lost by the Customer as a result directly or indirectly of the Company retaking possession of the goods. The Customer is deemed to deal with the goods on a first in first out basis (ii) The Customer acknowledges that this clause 4 constitutes the grant of a security interest by the Customer in favour of the Company and agrees to the Company applying to register a security interest in any goods supplied by the Company and the Customer waives its right under s 157(3) of the Personal Property Securities Act 2009 (Cth) (PPSA) to receive notice of any verification of the registration (iii) The Parties agrees not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7)(b)-(e) of the PPSA.
5. Caveat The Customer hereby charges in favour of the Company as security for the Customer’s obligations to the Company, all right, title and interest in any real property owned at any time (now or in the future) by the Customer (including alone or with anyone else). The Customer consents to the Company lodging a caveat over the title to such real property and irrevocably appoints the officers of the Company to be the Customer’s attorney for this purpose. The Customer acknowledges this is a power of attorney given as security for the purposes of s10 of the Powers of Attorney Act 1998.
6. PPSR Security Interest (i) The Customer hereby grants a Security Interest (by way of charge) in the Collateral to the Company:
· to secure payment of the Secured Money; and
· to secure performance of the obligations imposed on the Customer under this Agreement and all other agreements between the Company and the Customer.
(ii) The Security Interest constitutes a non-circulating and Specific Security Interest over the Collateral comprising the Specific Collateral.
(iii) The Security Interest constitutes a circulating security interest over any of the Customer’s other Collateral.
(iv) The Customer agrees that to the extent the law permits:
· Sections 142 (entitled Persons may redeem Collateral) and 143 (entitled Persons may reinstate security agreement) of the PPSA are excluded;
· The Company need not comply with the following provisions of the PPSA: Sections 95 (The Company must give notice of removal of accession), 118 (Enforcing security interests in accordance with land law decisions), 121(4) (enforcement of security interests in liquid assets – notice to higher priority parties and grantor), 125 (obligation to dispose of or retain collateral), 130 (notice of disposal of collateral), 132(3)(d) (the Company to give statement of account), 132(4) (the Company to give statement of account) and any other provisions of the PPSA notified to the Customer by the Company after the date of this document; and
· Neither the Company nor any Receiver need give any notice required under any provision of the PPSA (except section 135 (notice of retention of collateral)).
(v) If the Customer is in default of this Agreement (see clause 3) then the Company may do anything and sign anything that the Company considers appropriate to recover the Secured Money and deal with the Collateral. The Company may do this with or without taking possession of the Collateral, whether or not in conjunction with other property, despite any omission, neglect, delay and without liability for loss and without limiting the generality of the foregoing the Company may exercise any right, power or privilege conferred by law equity, this document or any other document between the Customer and the Company.
(vi) In this clause:
Circulating security interest has the same meaning as given in the PPSA;
Collateral means the whole of the undertaking property and assets of the Customer both present and future and includes any part of the Collateral and any property held at any time by the Customer as trustee of any trust;
Non-circulating security interest has the same meaning as given in the PPSA;
PPSA means the Personal Property Securities Act 2009;
Secured Money means all money (and any part of that money) which directly, indirectly, actually or contingently, or otherwise at any time is or becomes due by the Customer (whether alone or not) to the Company for any reason and includes any money due pursuant to this Agreement and costs and interest;
Specific Collateral means the collateral comprising any of the following:
· Any contracts relating to real estate including without limitation leases, licences, building contracts, development and building consents, plans, drawings and specifications.
· Insurance policies wholly or partly in respect of the Collateral.
· Money which becomes payable as compensation, purchase money, or otherwise in respect of the Collateral.
· Uncalled and called but unpaid capital or premiums.
· Book debts and records, rights, securities, and guarantees of any nature in relation to book and other debts.
· Plant, equipment, and machinery other than stock in trade.
· Books of account, vouchers, and other documents relating to the Customer’s business transactions.
· Computer software and computer records.
· Stocks, shares, debentures, bonds, and other securities.
· Bond and store warranties.
· Trade agencies, franchise rights and all other intellectual property.
· Any right of indemnity the Customer has out of the property of any trust for which the Customer is the trustee.
7. Orders (i) The Customer must make all orders in writing and using the form (if any) required by the Company. All orders must include such information as the Company notifies the Customer that the Company requires.
(ii) The Company reserves the right in its absolute discretion to accept or reject any order in whole or in part for any reason, including the unavailability of any goods. The Company may require the Customer to pay a deposit of 10% of the total order price before accepting an order.
(iii) The internal records of the Company are conclusive proof of the placement and terms of any order (except in the case of demonstrated manifest error). Clerical errors are subject to correction and do not bind the Company.
8. Cancellations Once an order has been accepted by the Company, the Customer can only cancel, vary or suspend the order (whether in whole or in part) if:-
(i) The Company agrees in writing to such cancellation, variation or suspension.
(ii) The Customer agrees to accept delivery of all goods held by and all goods in transit to the Company in respect of such order.
(iii) The Customer agrees to pay all costs, expenses and liabilities incurred by the Company in consequence of the cancellation, variation or suspension of the order and accept consequential delay.
9. Returns for Credit The Company may in its discretion accept the return of goods in exchange for credit on the following terms:-
(i) A request for credit must be made before the goods are returned and within thirty (30) days of being invoiced for those goods.
(ii) If the returned goods are accepted, the invoice costs shall be credited against the Customer’s outstanding account or future account. A cash refund will not be given.
(iii) The Company will not accept returned goods until they are received and examined for damage.
(iv) The Customer shall bear all costs for the return of the goods whether they are accepted by the Company or not.
(v) The Customer shall pay the Company a restocking fee as determined by the Company from time to time.
(vi) Acceptance of returned goods does not release the Customer of its obligation to pay for any services in relation to the goods.
10. Limitation of Liability To the extent possible at law:
(i) The Customer accepts full responsibility for the dimensions and quantities of goods ordered as independently computed by the Customer without relying on any estimates of dimensions or quantities given by the Company.
(ii) The Customer warrants to the Company that it will not rely on representations made and/or advice given by the Company or its employees in connection with the design, dimension, installation or use of goods sold and agrees that the Company shall not be liable for the consequences of any mistake in such representation or advices whether made or given innocently, deliberately and/or negligently.
(iii)If the goods are required for a particular purpose, the Customer must clearly specify that purpose in writing in the order placed with the Company and obtain written assurance from the Company that the goods when supplied will meet that requirement. If the Customer does not specify the particular purpose, and the Company does not expressly undertake in writing that the goods will be fit for the specified purpose, then the Customer agrees that it did not rely on the skill or judgement of the Company in relation to the suitability of the goods for a particular purpose.
(iv) The Company shall not be liable for delay in delivery of the goods or delivery of part(s) of the goods in instalment due to any cause whatsoever. The Customer shall not be relieved from any obligation to accept or pay for goods by reason of any delay in or the instalment delivery of the goods. Notwithstanding anything contained in the terms, in no event shall the Company be responsible for any loss of profits, penalties, disruption, expenditure and/or damages incurred and/or sustained by the Customer due directly or indirectly because of any delay in the instalment delivery of the goods.
(v) Any complaint by the Customer for failure to deliver, delayed delivery, short delivery, supply or incorrect and/or faulty goods must be made in writing by fax or email to the Company, within 8 hours of the agreed or reasonably expected time at which the Company failed to deliver such goods and/or any of the occurrences specified in this paragraph. If the Customer desires to make any claim whatsoever against the Company in respect of such failure and/or occurrences, the Customer must notify the Company of such claim and its particulars in writing within three (3) business days of the failure to deliver and/or of any of the occurrences. The Customer waives, foregoes, abandons and forgives forever any claim whatsoever the Customer may have against the Company unless it has strictly complied with the preceding notification requirement for the complaint and the claim.
(vi) Any goods returned by the Customer will be held and/or disposed of by the Company on behalf of the Customer unless the return of the goods is preceded by the complaint and the claim in writing as specified in the preceding paragraph. The Customer must facilitate the inspection of the goods by a Company representative prior to return. The acceptance of any returned goods shall not imply any acceptance by the Company of the Customer’s claim.
(vii) If the goods are delivered by the Company to the Customer in a damaged state, the Customer must request the Company in writing for their replacement within 8 hours of the delivery of the damaged goods and the Customer must at the time of the delivery of the damaged goods and the Customer must at the time of the delivery, specify in the delivery docket to be given to the deliverer that the goods are damaged and describe in the delivery docket the nature and extent of the damage.
(viii) The Customer will indemnify the Company for any claims made by a third party against the Company for any default of the Company directly or indirectly related to any contract and/or arrangement made between the Company and the Customer.
(ix) If the Australian Customer Law applies to this agreement then the goods and services come with guarantees that cannot be excluded under the Australian Customer Law including that the Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage and that the Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. Where it is lawful to do so the Company limits its liability for failure to comply with a Customer guarantee to one or more of the following:
(a) in the case of goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired;
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
(x) If the Australian Customer Law does not apply to this Agreement then except for any terms, conditions or warranties implied by law which are not capable of exclusion, or as otherwise expressly provided in this agreement, all conditions, warranties, terms, undertakings, duties and obligations expressed or implied by law in any way relating to goods or services (including as to merchantability, fitness or otherwise) are hereby excluded and the Company shall not be liable in contract, tort, negligence, breach of statutory duty or otherwise in respect of any loss or damage claimed or demands of any nature arising directly or indirectly out of provision of goods or the supply or services by the Company.
11. Delivery (i)The Company will arrange delivery of the goods to an address nominated by the Customer if the Customer so requests however the Customer is responsible for any freight, transportation, insurance, packing, storage and handling charges. The Company makes no warranty as to time of delivery and is not responsible for delays in delivery or failure to deliver due to causes beyond the Company's control. The Company may part deliver an order. The Customer must:(a)provide a delivery address at the time of placing the order; (b) ensure that the delivery address provides for safe and unobstructed access via properly formed roadway; (c) be present at the time of delivery (failing which the Company may unload the goods, without responsibility for any claims, damages, expenses or costs resulting or arising therefrom); (d) unload the goods; and (e) pay the Seller’s costs of delivery and return fee if the Goods cannot be delivered for whatever reason.
(ii) Unless agreed otherwise in writing prior to delivery, unloading of goods shall be the Customer’s responsibility and the Company will not be responsible for any damage resulting from the unloading of the goods by the Customer or by anyone on its behalf, or by the Company’s employee or agent.
(iii) The Customer indemnifies the Company from any claim whatsoever resulting from the Customer, its employee or agent loading the goods supplied by the Company on any vehicle or unloading goods supplied by the Company from any vehicle.
(iv) Any quantity, description, date, time and place of delivery as shown on the Company’s invoice or delivery docket shall be conclusive evidence of quantity, description, date, time and place of delivery of such goods.
(v) If the site is unattended goods will be unloaded on the site or if the site is not accessible as close to the site as is practicable and the delivery docket/manifest signed by the cartage contractor or the driver of the Company that the goods were delivered accordingly shall be conclusive evidence of due delivery of the goods.
(vi) The Company, if requested to enter a property, accepts no responsibility for any damage caused by the Company or its agent.
(vii) A standard delivery charge as published by the Company from time to time in its price list will apply.
(viii) Deferred delivery of goods already manufactured for the Customer will incur a storage charge of 0.5% per week of invoice value.
12. Acknowledgements The Customer warrants that it had the opportunity to read this Agreement and to seek its own independent advice (including legal advice) about the Agreement and further warrants that it enters into this Agreement with full understanding of its terms and after undertaking such negotiations about its terms as it desired. Without limiting any other method of acceptance, the placing of an order with the Company indicates the Customer’s acceptance of this Agreement. This Agreement applies notwithstanding the terms of any order placed by Customer. This Agreement constitutes the entire agreement between the Company and the Customer and all previous negotiations, warranties, undertakings and understandings are hereby superseded (however the Parties acknowledge they may enter into other written agreements that may form part of or be supplementary to this Agreement including for example consignment terms and/or supply of goods and equipment terms in which case this Agreement and any other written agreement to which the Company and the Customer are parties are interdependent and a breach by the Customer of any such agreement will be deemed to be a breach of all other such agreements entitling the Company to exercise rights under any one or more of such agreements or at law.
13. Risk The goods are at the Customer's risk from the time the goods are collected on behalf of the Customer, or from the time they are dispatched to the Customer (if the goods are to be delivered to the Customer).
14. Costs The Customer must pay the Company's legal costs (on an indemnity basis) of enforcing, or attempting to enforce, any of the Company's rights under this Agreement and any other agreement between the Company and the Customer. The Customer must also pay fees and expenses payable to any debt collection agency engaged by the Company to obtain or attempt to obtain payment of amounts due by the Customer. The Customer acknowledges that those expenses may be calculated on a commission basis. Amounts received by the Company may be applied first against legal costs and debt collection agency costs, then to interest and then to payment of the overdue invoices. The Customer agrees to indemnify and keep indemnified the Company against any loss, claim or expense (including legal costs on indemnity basis) relating to any breach by the Customer of this Agreement and any other agreement between the Company and the Customer.
15. Variation The Company may vary any of the terms of this Agreement or add further terms upon giving thirty (30) days’ notice in writing to the Customer. The Customer may by notice in writing to the Company advise that it does not accept the new terms at which time these credit facilities will be deemed withdrawn and all monies owed to the Company will immediately become due and payable. The placing of an order with the Company indicates the Customer’s acceptance of the new terms. In that event, the Customer will be bound by this Agreement including the new terms and any Guarantor will be deemed to have consented to the new terms and will be bound by the terms of their Guarantee as though reference to this Agreement included the new terms. Except as aforesaid this Agreement can only be varied in writing signed by the Company and the Customer.
16. Trustees and Joint Parties If the Customer enters into this Agreement as trustee for a trust, then the Customer and its successors as trustee for that trust will be liable under this Agreement in its own right and as trustee for the trust. Nothing releases the Customer from any liability in its personal capacity. If the Customer is a Corporation then the Company is entitled to act upon instructions of any person held out to the Company as having authority to give instructions or place orders without the necessity for the Company to enquire into the authority of the person who gives those instructions or makes that order. If the Customer consists of two or more persons then: (a) instructions given or orders placed by any one of those persons is binding on the others and the Company is not required to enquire into the authority of the person who instructs the Company or places the order; (b) this Agreement binds them jointly and severally.
17. General Conditions (i) If any term or condition is or becomes illegal or unenforceable it will be severed and none of the remaining terms or conditions will be affected (ii) If the Company is prevented from or restricted in carrying out its obligations on any matter beyond the Company’s reasonable control, then the Company is excused from carrying out its obligations to the extent of the cause of the non-performance but the Company must use its best endeavours to avoid or remove the cause of the non-performance as quickly as reasonably possible (iii) Any failure by the Company to exercise any right under this Agreement does not operate as a waiver and the single or partial exercise of any right by the Company does not preclude any other or further exercise of that or any other right by the Company (iv) The Company’s rights under this Agreement are cumulative and not exclusive of any rights provided by law (v) The Customer must give written notice to the Company within seven days of any change on the Customer’s details as recorded in the Application. Changes to the Customer (even if notified to the Company) do not relieve the Customer and the Guarantors of any liability to the Company. The Company may treat a notification as a new Application for Credit Account in which case the Company may terminate the existing account and consider the Application in its discretion (vi) The Customer warrants that as at the date of submitting the credit application and on the date of placing each order that the Customer is able to pay its debts as and when they fall due (vii) The Company may assign or licence any or all of its rights and obligations under this Agreement without requiring the Customer’s consent. The Customer may not assign any of its rights or obligations under this Agreement, unless it obtains the Company’s prior written consent, which may be given, withheld or given on conditions in the Company’s absolute discretion (ix) The Company reserves the right at any time to alter the specifications of the goods, to vary prices of the goods or to discontinue the supply of any of its goods.
18. Customer Obligations (i) The Customer is responsible for the affixing of all labels, warnings, notices etc to the goods as may be required by law at the Customer's own cost (unless by law the Company must do so) (ii) The Customer must not make any representations or give any warranties in relation to the goods except as contained in literature published by the Company or as are expressly approved in writing by the Company. The Company is not liable for any warranty given by the Customer which has not been authorised by the Company and the Customer shall indemnify the Company and keep it indemnified against any loss, claim or expense suffered as a result of a breach of this clause by the Customer (iii) The Customer must not do or omit to do anything which results in or may reasonably be expected to result in damage to the name or reputation of the Company and its goods.
19. Guarantee If the Customer is a corporation then contemporaneously with the signing of this Agreement the Customer must procure the execution of the Guarantee and Indemnity attached to this Agreement by all of its directors. The Company is not bound to provide any goods or services to the Customer unless this condition is satisfied and may by written notice to the Customer terminate or any arrangement between the Company and the Customer if this condition is not satisfied.
CA V2 24.07.17