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These Terms and Conditions apply to the exclusion of all others including terms and conditions incorporated in any purchase order. The Supplier supplies only on these terms and conditions and any Customer taking delivery of goods and services shall by doing so agree to these terms and conditions applying to the exclusion of all other terms and conditions. If a provision of these Terms & Conditions is wholly or partly invalid or unenforceable, that provision or that part of it that is invalid or unenforceable must, to the extent, be deleted from these terms and conditions. Nothing affects the validity or enforceability of the remaining Terms & Conditions. In these terms and conditions the Applicant and\or Customer (“the Customer”) means the party accepting the terms and where applicable includes their\its directors, employees, contractors or agents. “Products ” or “Goods” means the goods or products supplied to the Customer from time to time to pursuant to these Terms and Conditions and form the Collateral for the purposes of the PPS Act.
All goods and quotes for services are supplied at the current list price at the time of order or the amount set out in any current written quote at the time of order. All prices for goods and products are expressed as excluding any goods and services tax and are ex-warehouse from the place of distribution as described in any current written quote unless otherwise stated in writing. Transport and delivery charges (if applicable) are payable by the Customer in addition to any quoted price.
Terms of payment will be cash prior to delivery other than for Customers who have approval in writing for credit accounts. The Supplier reserves the right to withhold further services in circumstances where terms of payment have not been met by the Customer. If the Customer fails to pay any moneys owing to the Supplier within credit terms, such overdue moneys shall accrue interest from day to day at a rate equal to 15% per annum on such moneys after the due date of the invoice, until all moneys are paid in full. In additional to any payment or interest due to the Supplier in accordance with this clause, the Customer shall be liable for all reasonable legal and debt collection costs incurred by the Supplier in relation to collection of any payment due by the Customer on a full indemnity basis.
4.1 The risk of loss or damage to Products shall pass to the Customer at the time that the Products are delivered to the Customer.
4.2 Title to Products shall remain with the Supplier, and the Customer acknowledges and agrees that the Supplier is hereby granted a Security Interest in the Products, until full payment is made of all moneys owing to the Supplier from time to time.
4.3 Until the Supplier has been paid all moneys owed by the Customer:
(a) the Customer shall hold the Products as bailee of the Supplier, subject to the Customer’s right to deal with the Products in the ordinary course of the Customer’s business; and
(b) the Customer shall indemnify the Supplier against any claim arising out of the possession, use or disposal of the Products by the Customer.
4.4 To the extent permitted by law, if there is a default under these Terms and Conditions or the Customer fails to make payment of any monies by the due date, each Security Interest created in the Supplier’s favour will become immediately enforceable. If:
(a) a payment is not made by the Customer in accordance with these terms; or
(b) The Supplier receives notice of or reasonably believes that a third person may attempt to levy execution against any Products; or
(c) an Insolvency Event occurs, then the Supplier may, at any time without notice to the Customer, and without prejudice to any other rights that it may have against the Customer:
(d) terminate the bailment referred to above; and
(e) enter upon any premises of the Customer (including any Outlet) where the Supplier reasonably believes Products may be stored and retake possession of the Products without liability for trespass or any resulting damage;
(f) keep or resell the Products repossessed pursuant to paragraph (ii) and pay any expenses incurred in the exercise of the Supplier’s rights from such realisations.
4.5 The Supplier has, to secure all monies payable by the Customer to the Supplier at any time, a PMSI in each of the Products supplied to the Customer from time to time and the Supplier’s Security Interest shall extend to the Proceeds (including any Account) and Accessions. To the extent that the PPS Act provides that the Supplier does not have a PMSI in the Products and any Proceeds arising in respect of the Products, the Customer agrees that the Supplier continues to hold a Security Interest in the Products. The Security Interest will continue until the Supplier provides the Customer with a final release.
4.6 The Customer agrees to execute any documents, provide all relevant information and full cooperation to the Supplier to ensure that the Supplier has a Security Interest in the Products and the Proceeds, and if applicable, a PMSI.
4.7 The Customer agrees that if the Supplier has any rights in addition to the PPS Act, those rights continue and are in addition to the rights of the Supplier under the PPS Act.
4.8 The Customer hereby authorises the Supplier as the Customer’s authorised representative to request any information under section 275 of the PPS Act from any Secured Party in relation to any Security Interest.
4.9 The Customer must give the Supplier 10 Business Days prior written notice of any proposed change in name and any change in details of the Customer, including without limitation, the Customer’s address, email, and telephone contact number.
4.10 The Customer must not, without the Supplier’s written consent, file, lodge or serve a Financing Change Statement or an Amendment Demand.
4.11 The Customer must not permit any Products to become an Accession to or to be manufactured, processed, assembled or commingled with anything that the Supplier does not own or is not subject to a perfected Security Interest in favour of the Supplier, and even then only if the priority of that Security Interest is no less favourable than the priority of the Supplier’s Security Interest in those Products.
4.12 The Customer must:
(a) do or cause to be done anything which the Supplier considers necessary or desirable to perfect and protect any Security Interest provided for by these Terms and Conditions; and
4.13 If the Customer disposes of the Products in a way that gives rise to an Account, the Customer grants the Supplier a Security Interest in that Account.
4.14 The Customer acknowledges that the Supplier may register one or more Financing Statements (or Financing Change Statements) in relation to any Security Interest provided for by these Terms and Conditions. If permitted by the PPS Act, the Customer waives its right under section 157 of the PPS Act to receive notice of any verification statement relating to the registration of any such Financing Statement or any related Financing Change Statement.
4.15To the extent that Chapter 4 of the PPS Act would otherwise apply to an enforcement by the Supplier of any Security Interest provided for by these Terms and Conditions, the Supplier and the Customer agree with each other that the following provisions of the PPS Act do not apply:
(a) to the extent that section 115(1) of the PPS Act allows them to be excluded: sections 95, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143 and any other provision of the PPS Act notified to the Customer by the Supplier after the date of these Terms and Conditions; and
(b) The Supplier need not give any notice (including notice of a verification statement) required under any provision of the PPS Act. If section 115(1) of the PPS Act does not allow section 125 of the PPS Act to be excluded, the Customer agrees that at any time after any Security Interest provided for by these Terms and Conditions has become enforceable, the Supplier may delay disposing of, or taking action to retain, the whole or part of the Collateral to the extent permitted by law.
Collateral, Secured Party, Security Interest, Account, Accession, Personal Property, Possession, Proceeds, Secured Party, Security Interest and PMSI all have the same meaning as that term is defined in the PPS Act.
PPS Act means the Personal Property Securities Act 2009.
Privacy Act means the Privacy Act 1988 (Cth) including the National Privacy Principles, as amended.
Product or Goods means the products and goods supplied under these terms.
Insolvency Event means any of the following events:
(a) an application is made or an order is made, proceedings are commenced or other steps are taken for the receivership, winding up, dissolution, official management or administration of the Customer;
(b) the Customer enters into an arrangement, compromise or composition or assignment for the benefit of its creditors or any class of its creditors;
(c) a receiver, a receiver and manager, liquidation, provisional liquidator, administrator, trustee in bankruptcy or similar officer is appointed to the Customer or any of its property or a distress, attachment or other form of execution is levied or enforced or if a mortgagee or chargee enters or takes possession of any of the Customer’s property.
In so far as is possible all warranties whether by statute or common law in relation to the supply of goods and products by the Supplier are expressly negatived and do not apply. The Supplier is not liable to the Customer, and the Customer releases the Supplier, from any breach of contract or duty of care. The Customer acknowledges that the Supplier is not responsible for, and releases and discharges the Supplier from, any direct, indirect or consequential loss or expense suffered by the Customer or any third party, howsoever caused from the supply of any services and use of the goods and products including breach of statutory or common law warranties and negligence. If any dispute arises, as a result of the use of the goods or services, the Customer will exclude the Supplier from any dispute or claim, action or court proceeding. Further, the Customer agrees to indemnify the Supplier from and against all liability and losses (including costs on a full indemnity basis) which may be incurred by the Supplier as a result of any such dispute, action or court proceedings including any claim made by a third party. To the extent permitted by law, the absolute limit of the Supplier liability under any condition or warranty that cannot be legally excluded is limited to the replacement or repair or re-supply of equivalent products or services. The Customer acknowledges that the Supplier is not responsible for, and releases the Supplier from, any direct, indirect or consequential loss or expense suffered by the Customer or any third party, howsoever caused from the supply and use of the goods and products. The Customer warrants that it has obtained all approvals and consents required from the appropriate consent authority for any works to be carried out by the Supplier and indemnifies the Supplier against all liability and losses (including costs on a full indemnity basis) which may be incurred by the Supplier as a result of breach of such warranty.
The Supplier may collect, use and disclose Personal Information about the Customer and any Guarantor for the primary purpose of providing the Products to the Customer including but not limited to determining whether to accept an Account Application of the Customer, start, stop or limit the supply of the Products to the Customer, billing and account management.
The Supplier may receive and disclose Personal Information or documents about the Customer or any Guarantor to or from credit providers or credit reporting agencies for the purposes permitted under the Privacy Act, law enforcement agencies to assist them in prevention of criminal activity or as provided for in any Account Application.
No party will be liable nor deemed to be liable to the other party for failure or delay in meeting any obligation under these terms and conditions or any associated supply agreement due to (force majeure event):-
In any such force majeure event, the time for performance of the obligations of a party will be extended by the same period or periods (as the case may be) for which performance is delayed. The party so affected will use its best endeavours to avoid or remove such causes of non performance and will continue performance hereunder with the utmost despatch as soon as such causes are removed. Nothing in this clause will be construed as requiring the affected party to settle any industrial dispute.
Where a force majeure event affects the cost of the Supplier performing its obligations under these terms and conditions or any associated agreement, any agreed fixed or contract price may be adjusted at the sole discretion of the Supplier to reflect the additional or changed cost of the Supplier meeting its obligations under these terms and conditions or any associated agreement during the period of the force majeure event.
When goods and products are supplied by the Supplier which have been manufactured by a third party, the Supplier agrees to assign to the purchaser on written request by the purchaser, the benefit of any warranty or guarantee to the goods and products that the manufacturer has granted to the Supplier under any contract or by implication or operation of law to the extent that the benefit of any warranty or guarantee is assignable.
The parties agree to submit exclusively to the jurisdiction of the courts of New South Wales.
General Terms of Trade
These General Terms of Trade apply broadly to all transactions between us. Documents issued by us in regards to a transaction will identify, if necessary, special terms and conditions.
INTERPRETATION
“Good Faith” means honesty in fact in the conduct or transaction concerned and is a notion that is extended to include negotiations precedent or subsequent to this Agreement.
“Business Day” means any day other than a Saturday, Sunday or public holiday.
Time is of the essence as it pertains to the performance of its respective obligation under this Agreement and the transaction contemplated and is a primary consideration when interpreting the reasonableness of time in a particular situation.
Reasonable Time Whenever the Agreement between us requires any action to be taken within a reasonable time, any time which is not manifestly unreasonable may be fixed by our consent. What is reasonable time for taking any action depends on the nature, purpose and circumstance of such action.
Description of the Parties
We are the “Seller”, that is, the person who sells or contracts to sell goods or services.
You are the “Buyer”, that is, the person who buys or contracts under authority of another, whether expressly or impliedly, to buy goods or services.
“Guarantor” means that person who has furnished, under a separate agreement, an undertaking in favour of us stating that your performance under this Agreement will be discharged to our full satisfaction. There is no obligation imposed upon us to keep a Guarantor or Guarantors, as may be required from time to time, informed as to your performance or non-performance hereunder.
The Subject Matter to be Supplied
“Goods” means those things which are moveable and have been identified or referenced in some way by the Parties and are for use primarily in the commercial context, including certificates or coupons exchangeable for such goods, and including goods, which at the time of sale or subsequently, are to be affixed to real property whether or not severable therefrom. Goods must be both existing and identified before any interest in them can pass.
“Services” means work, skill, labour and services, including, but not limited to, services furnished in connection with repair, alteration or improvement of a premises, or services furnished in connection with the sale or repair of goods. The supply of services may be based upon a supply of goods component or vice versa.
The transactions contemplated hereunder may be for the supply of goods or services or may be some combination of both.
Determination of Price
“Price” means the amount agreed to by the parties; or fixed under our absolute discretion and announced, either orally or in writing, by us to which you have approved, expressly or impliedly; or means the amount established by a course of dealing between us.
”Delivery” means voluntary transfer of possession, but the Price, unless otherwise stated in writing by us, does not include delivery costs.
Payment
Default
When are you in default?
You will be in default, for example, if:
As the Buyer:
As a Guarantor:
We may send you a default notice:
If you are in default under our Agreement, we may send you a default notice. The notice will tell you:
Failure to comply with our default notice
If you do not comply with the default notice
We may perform your obligations at your costs
If you fail to do anything that our Agreement requires you to do, we may:
Enforcement Expense and Interest
In the event of a breach of this Agreement, we may charge you enforcement expenses reasonably incurred by us. We may add these to your account. These expenses include, but are not limited to:
An enforcement expense includes, but is not limited to:
Lien
To secure payment to us of all sums due under the Agreement, you irrevocably grant to us, after taking possession of the goods, a lien on goods the subject of this Agreement. Under this arrangement you have agreed to allow us to keep open certain remedies available that statutory authority, for example, the Sale of Goods Act, may operate to limit without your consent.
Risk
Unless otherwise agreed risk passes to you at the time we ship, and we ship FOB our ordinary place of business to your specified location. You assume all responsibility for filing claims for damage against the carriers and other agents involved.
Transfer of Title and Property
Title of ownership and property in the goods vests absolutely with us and does not pass to you UNTIL you have discharged fully your obligations, for example, payment in full as required under this Agreement.
Damage or Destruction
If any of the goods are damaged or destroyed prior to our tender of delivery, you will direct the insurer to make payment to us of all insurance monies payable in respect of the insurance claim made on the damaged or destroyed goods, the receipt of monies of which is to be applied to us as follows:
First: Against the outstanding price of the goods that are damaged or destroyed.
Second: Against the outstanding price of all goods supplied under the Agreement
Third: Against the outstanding balance payable to us by you on any account under the Agreement
Fourth: If any monies remain after application of steps 1 – 3, we will notify you of the amount of any residual, and you are required to make a written reclamation demand within ten (10) business days after your receipt of the notice; otherwise, we have the right to hold the residual and apply it as a credit against future transactions between us.
Access
You irrevocably permit us or any person authorised by us in writing, upon our giving you reasonable notice to enter your premises or a premises where goods are reasonably believed by us to be held on your behalf. You also agree to indemnify and hold us harmless for reasonable costs of removal, enforcement and legal action in respect of the removal of goods the subject of this Agreement.
Further Assistance
Representations and Warranties
You represent and warrant to us that:
You acknowledge that:
The Effects of Statutory Covenants Diminished
If the law of the State or Territory where the transaction occurred when we entered into this Agreement implies covenants into the transaction not contemplated by either or both of us, then the operation and effect of those implied covenants are diminished to the fullest extent permitted. Nothing in this provision purports to operate to exclude statutory covenants where it is an offence to do so renders this Agreement inoperable.
Undertakings Regarding the Transaction or Transactions Contemplated by this Agreement
Our tender of delivery under this Agreement is a condition to your duty to accept the goods or services provided and, unless otherwise agreed, your duty to pay for them. Tender entitles us to:
Your acceptance of the Goods or Services occurs when you:
Your acceptance of a part of any commercial unit is acceptance of that entire unit.
Your right, as against us to retain or dispose of the goods or services delivered or supplied, is conditional upon you making the payment due.
Liability of Seller
Except as otherwise provided in these conditions the Seller shall not be under any liability in respect of defects in goods delivered or for any injury, damage or loss resulting from such defects or from any work done in connection therewith except to the extent that any statute applicable to these conditions prevents the exclusion, restriction or modification of such conditions or warranties. Notwithstanding any other provisions of the contract the Seller shall not be liable to the Buyer for any loss of profits howsoever arising nor shall the Seller be under any liability whether in contract, tort or otherwise nor for any injury, damage or loss whether consequential or otherwise save as is expressly provided in these conditions. The Seller shall not be responsible for damage or fault in performance arising out of incorrect or inappropriate operation of the Product by the Buyer. The Buyer acknowledges that Seller gives no warranty as to fitness of the product for the intended application of the Buyer and that the Buyer has relied entirely upon its own evaluation thereof.
Dispute Resolution
When a dispute arises between us, you agree to comply with our dispute resolution process. To this end a person under our Agreement who has a complaint against the other person for whatever reason is first required to notify the other party of the dispute by giving written notice specifying the following:
Each of us will then in good faith attempt to resolve the dispute by mutual negotiation, and if the dispute in some aspect involves payment of monies, the party withholding payment is required immediately upon receipt of the said notice to deposit the disputed amount into an escrow account with instructions pertaining to the release of funds. Undisputed amounts shall be paid forthwith.
A person who does not follow these instructions will violate the covenant of the duty of good faith and fair dealing under our Agreement, and the facts and the evidence in support of this breach may be brought to the attention of the trier of fact, if the dispute is not resolved and must be litigated in a court of competent jurisdiction.
A failure by a party to place funds into an escrow account, moreover, is conduct that may be interpreted by the other party as being such that the party is not able to pay its obligations as they become due and gives good cause for the other party, if that party so desires, to initiate remedial action without penalty.
Notices
Notices, demands or requests provided for or permitted to be given under our Agreement must, at all times, be in writing and may be given to the address identified on the most recent transaction document by:
Termination of this Agreement by one party except on the happening of an agreed event requires that reasonable notice be received by the other party and any attempt to dispense with notification is invalid if its operation would be unconscionable.
Personal Guarantee of Shareholders, Partners and Spouses
If you are a corporation, trust or partnership, all principals may be required to sign a Personal Guarantee. If you are an individual, your spouse may be required to sign a Personal Guarantee.
Unless all such principals or spouses, as applicable, execute such Personal Guarantee when required, this Agreement shall at our option, become null and void and confer no rights upon you, notwithstanding performance for any duration under the Agreement.
All guarantors shall be jointly and severally liable for performance of all of the terms, covenants and conditions of this Agreement.
Privacy Act and Credit Information
You and the Guarantor jointly and severally acknowledge and agree that we are authorised to make approaches to a credit reporting agency throughout the term of the Agreement to obtain a report about the creditworthiness of either the Buyer or the Guarantor or both.
You and the Guarantor jointly and severally authorise us to engage in the exchange of information with a credit reporting agency or with other such parties as are necessary to give effect to the contract and to the ongoing relationship between the parties hereto.
You and the guarantor jointly and severally acknowledge that the information referred to in the previous paragraph may include information about the creditworthiness of either the Buyer or the Guarantor or both.
You and the guarantor jointly and severally acknowledge that we will make such approaches as referred to herein as permitted by the various provisions under the Privacy Act 1988 (Cth) including, but not limited to, sections 18E(8)(c) and 18K(1)(h). It is understood and agreed between us that any credit information received shall remain confidential.
Execution and Counterparts
This Agreement may be executed in several counterparts and when so executed will constitute one agreement binding on us, despite the fact that our signatures may appear at different intervals on original and counterparts.
Unenforceable Terms
Any provision in this Agreement that is prohibited or unenforceable under any applicable law or any jurisdiction shall as to such jurisdiction be ineffective without affecting any other provision of this Agreement. To the full extent that the provisions of such applicable law may be waived, both of us hereby waive them to the fullest extent possible so that this Agreement is still valid and binding and is enforceable in accordance with its remaining terms.
Governing Law
This Agreement is to be governed by the law of the State of New South Wales.
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