TERMS & CONDITIONS
- Definitions
1.1 “Buyer” means the party specified in Item 2 of Schedule 1 and where the context requires includes that party\’s employees, agents, representatives, successors and assigns;1.2 “Delivered or Delivery” means the delivery, at the Buyer’s cost, of the Goods by the Seller to the Buyer’s nominated address for delivery.1.3 “Goods” means any goods or products purchased by the Buyer from the Seller under any Goods Order or any other contract, agreement or order;1.4 “Goods Order” means the written order given by the Buyer to the Seller specifying the type and quantity of Goods to be purchased by the Buyer and includes any Goods Order which is varied with the written consent of the Seller;1.5 “Guarantee and Indemnity” means the Deed of Guarantee, Indemnity and Charge attached as Schedule 2 to these trading terms and conditions;1.6 “PPSA” means Personal Property Securities Act 2009 (Cth);1.7 “PPSR” means the Personal Property Securities Register created pursuant to the PPSA;1.8 “Seller” means the party specified in Item 1 of Schedule 1.
- Acknowledgement by Buyer
The Buyer acknowledges and agrees that:
2.1 these trading terms and conditions form an integral part of all Goods Orders or any other contracts, agreements and orders involving the sale of Goods by the Seller to the Buyer unless the Seller and the Buyer agree in writing to separate or varied trading terms and conditions; and2.2 the Seller is under no obligation at any time to accept any Goods Order or any other offer, request or order made by the Buyer to purchase the Seller’s Goods, without the Seller being required to give the Buyer any reason and notwithstanding that the Seller may have previously accepted a Goods Order or Goods Orders from the Buyer in relation to the Seller’s Goods and Delivered the Goods to the Buyer; and2.3 the Buyer may not make any claim against, or demand any costs, expenses or losses from the Seller if the Seller refuses to accept the Buyer’s Goods Order or any other offer, request or order made by the Buyer to the Seller in relation to the Seller’s Goods under clause 2.2. - Price
3.1 The price of the Goods purchased by the Buyer shall be the Seller\’s price for the Goods applicable on the date the Goods Order is accepted by the Seller, unless otherwise agreed in writing between the Buyer and the Seller.3.2 The Seller will issue a tax invoice for the Goods purchased by the Buyer specifying the price for the Goods as determined in accordance with clause 3.1 and the cost of Delivery of the Goods. - Payment
4.1 The Buyer agrees to pay the price specified in the Seller\’s tax invoice for any Goods invoiced on the date for payment specified in the tax invoice, or if no date is specified, no later than seven (7) days from the date of the tax invoice.4.2 Failure by the Buyer to pay the tax invoice for the Goods in accordance with clause 4.1 shall entitle the Seller to immediately cancel all outstanding Goods Orders and any other contracts, agreements or orders made with or placed by the Buyer, without incurring any penalty or liability for such cancellation.4.3 Notwithstanding the Seller’s rights under clause 4.4 the Seller reserves the right to charge interest at the rate which is two (2) percent (2%) higher than the rate specified from time to time in the Penalty Interest Rates Act 1983 (Vic), calculated and compounding monthly, on any amount owing by the Buyer to the Seller from the date the amount was due until the date it is actually paid.4.4 If the Buyer cancels a Goods Order after it has been accepted by the Seller, the Buyer acknowledges and agrees that the Seller may retain any deposit paid by the Buyer to the Seller in relation to that cancelled Goods Order. - Directors Guarantee
If the Buyer is a company, it must procure its directors to sign and date the Guarantee and Indemnity and the Buyer agrees that it must Deliver the signed and dated Guarantee and Indemnity to the Seller at the same time it Delivers to the Seller these trading terms and conditions signed and dated by the Buyer. - Seller’s Liabilities for Goods Supplied
The Buyer acknowledges and agrees that:
6.1 no supply or sale of any Goods by the Seller to the Buyer is, or amounts to a sale by description or a sale by sample;6.2 the Buyer has relied on its own knowledge and expertise when purchasing the Goods as to their suitability for any purpose;6.3 the Seller has not given any warranties or made any representations as to the suitability of the Goods for any purpose and no previous supplies or purchases of Goods by the Buyer from the Seller is indicative that the Goods are of a particular quality or type or suitable or fit for a particular purpose; and6.4 if there is a modification in the Goods between the date on which the Goods Order was accepted by the Seller and the date the Goods were Delivered to the Buyer, due to a change implemented by the manufacturer of the Goods, the Buyer agrees to accept the Goods as modified.6.5 To the full extent permitted by law, the Seller is not liable to the Buyer for any direct, indirect or consequential or contingent loss, liability, cost, damage or expense of whatever nature suffered or incurred by the Buyer or any third party from the Goods. - Retention of Title to Goods
7.1 The Seller and the Buyer acknowledge and agree that:
7.1.1 the legal and equitable title, ownership and property in the Goods remains with the Seller absolutely at all times until the Seller has been paid in full for the Goods purchased by the Buyer under all individual Goods Orders, contracts, agreements or orders between the Seller and the Buyer;7.1.2 the Buyer is a trustee and bailee of the Goods and the proceeds received by or owed to the Buyer from the sale of the Goods by the Buyer;7.1.3 the trust and bailment referred to in clause 7.1.2 continues in relation to separate purchases of the Seller\’s Goods Delivered to the Buyer until the price for the Goods under all individual Goods Orders, contracts, agreements or orders between the Seller and the Buyer have been paid in full;7.1.4 the Goods are at the Buyer’s risk on and from the time the Goods are Delivered to the Buyer; and7.1.5 the Buyer’s right to possession of the Goods immediately ceases if it does anything, or fails to do anything, which results, or would result, in an event occurring under clause 13 of these trading terms and conditions.
7.2 Until Goods are paid for in full, the Buyer must:
7.2.1 not sell or supply any Goods to any person outside its ordinary or usual course of business;7.2.2 sell or supply any Goods to any person in its ordinary or usual course of business as an agent for the Seller and agrees to:
(a) place any proceeds from the sale or supply of any Goods into a separate bank account, which is at all times identifiable as the money of the Seller ensuring that none of the proceeds are mingled with any other money or deposited into any overdrawn account; and(b) pay to the Seller the proceeds referred to in clause 6.2.2(a) on their due date for payment plus any interest payable;
7.2.3 not allow any person to create, have or acquire any security interest in the Goods;7.2.4 properly and separately store and label the Goods Delivered so as to distinguish them from the Buyer\’s own goods, in a manner which makes them readily identifiable as the Seller’s Goods.
7.3 The Buyer acknowledges and agrees that the Seller is not obliged or required to distinguish between Goods sold to the Buyer pursuant to invoices which remain unpaid and Goods sold to the Buyer pursuant to invoices which have been paid.7.4 If the Buyer fails to pay for any of the Goods by their due date for payment, or as otherwise agreed in writing between the Buyer and the Seller, the Seller may enter the Buyer\’s premises, or any other premises in which the Goods are stored or in which the Seller reasonably believes they are stored, during business hours without the requirement to provide any previous notice, for the purpose of auditing, inspecting or retaking and recovering possession of the Goods and the Buyer hereby grants to the Seller an irrevocable licence to do so without liability for trespass or any resulting damage. The Buyer agrees that the Seller may use reasonable force in exercising its power of auditing, inspecting or retaking possession of the Goods under this clause 7.4.
7.5 The Buyer acknowledges and agrees that clause 7.4 constitutes specific authority for the Seller to enter the Buyer\’s premises, or any other premises in which the Goods are stored or in which the Seller reasonably believes they are stored, for the purposes specified in clause 7.4 and the Seller may rely on clause 7.4 and this clause 7.5 against the Buyer in the event of a dispute, mediation, arbitration or court proceeding with the Buyer.
7.6 The Buyer indemnifies the Seller against any claim made by the Buyer or a third party arising out of the Seller exercising its rights under clause 7.4 and 7.5.
7.7 The Buyer acknowledges and agrees that the Seller will not be deemed to be relinquishing any of its rights as a creditor when exercising any of its rights as owner of the Goods under this clause 7.
7.8 The express and implied terms of this clause 7 continue even if any Goods Order, contract, agreement or order between the Seller and the Buyer is repudiated by the Buyer.
7.9 The Seller does not relinquish any of its rights against the Buyer until all monies due and payable to it by the Buyer, are paid in full.
- Matters Beyond Control of Seller
The Seller is not be responsible to the Buyer in any way if it is unable or is delayed in performing its obligations under any Goods Order, contract, agreement or order relating to the sale and Delivery of Goods to the Buyer, if that inability or delay arises directly or indirectly from the happening of any event not within the reasonable control of the Seller or because of the failure by the Buyer to provide the Seller with any information or thing the Seller requires and has requested from the Buyer, which is required by the Seller in order for it to Deliver the Goods to the Buyer. - Matters Relating to Goods Orders
The Buyer acknowledges and agrees that:
9.1 if a dispute arises between the Buyer and Seller concerning any Goods Order, contract, agreement or order (including but not limited to telephone, facsimile or computer-generated orders), the internal records of the Seller will be, except in the case of manifest error, conclusive evidence of what Goods were ordered and/or purchased by the Buyer as well as the price payable by the Buyer to the Seller for those Goods and the cost of Delivery of those Goods;9.2 each order it places with the Seller will be, and be deemed to be, a representation by the Buyer that at the time it placed the order for the purchase of the Goods, it was solvent and able to pay all of its debts as and when they fell due; and9.3 failure by the Buyer to pay the Seller\’s tax invoice on the date due for payment is conclusive evidence that the Buyer had no reasonable grounds for making the representation referred to in clause 9.2. - Assignment
No Goods Order, contract, agreement or order between the Seller and the Buyer may be assigned without the Seller\’s written consent, which consent may be given or withheld by the Seller in its absolute discretion. - Buyer Warranty
11.1 If the Buyer is a corporation, it warrants to the Seller that the individual signing any Goods Order, contract, agreement, order, credit application or these trading terms and conditions on the Buyer\’s behalf has the necessary authority to sign on behalf of and to bind the Buyer.11.2 The individual signing any Goods Order, contract, agreement, order, credit application or these trading terms and conditions on the Buyer\’s behalf warrants that he or she has the necessary authority to sign on behalf of and to bind the Buyer. - Intellectual Property
The Buyer must not use any of the Seller\’s intellectual property including copyright, patents, trademarks, logos, designs, know-how and any other type of intellectual property, whether registered or unregistered, which belong to the Seller without the prior written consent of the Seller. - Termination
The Seller may immediately terminate any Goods Order, contract, agreement or order by notice in writing to the Buyer and enter the Buyer’s premises at any time, without notice, without being liable to trespass and using reasonable force if necessary and retake possession of any Goods without prejudice to any other rights the Seller may have under these trading terms and conditions or any Goods Order, contract, agreement or order if the Buyer:
13.1 commits a breach of any term of any Goods Order, contract, agreement or order between the Seller and the Buyer or these trading terms and conditions;13.2 ceases to carry on its current business or a material part of its current business, or threatens to do either of these things;13.3 threatens or resolves to wind itself up or to appoint an administrator or liquidator or gives notice of an intention to do so;13.4 has a receiver or a receiver and manager appointed to it;13.5 is placed under administration, liquidation or makes or proposes to make any arrangement with its creditors or becomes bankrupt;13.6 has a judgement debt entered into against it for an amount exceeding $1,000.00 and this is not satisfied by the Buyer within 14 days. - Recovery of Costs
The Buyer indemnifies the Seller from and against all costs, charges and expenses suffered or incurred by the Seller resulting from any breach by the Buyer of any Goods Order, contract, agreement, order or these trading terms and conditions and must pay these costs, charges and expenses to the Seller immediately upon demand. - Personal Properties Securities Act 2009
The Buyer acknowledges and agrees that:
15.1 for the purposes of the PPSA, a binding security agreement is deemed to have been formed between the Seller and the Buyer on and from the earliest to occur of the following events:
15.1.1 the Buyer signing these trading terms and conditions;15.1.2 the Seller accepting any Goods Order from the Buyer, resulting in these trading terms and conditions becoming immediately binding on the Buyer;15.1.3 registration by the Seller of its security interest against the Buyer on the PPSR, in respect of these trading terms and conditions or any Goods Order; or15.1.4 the provision of any Goods or credit to the Buyer by the Seller;
15.2 upon a binding security agreement being formed between the Seller and the Buyer, the Seller will have a security interest in:
15.2.1 all Goods previously supplied by the Seller to the Buyer; and15.2.2 all Goods that will be supplied in the future by the Seller to the Buyer; and
15.3 the Seller may register its security interest or interests created by any Goods Order or these trading terms and conditions on the PPSR pursuant to the PPSA;15.4 upon request by the Seller, the Buyer must sign any further documents and/or provide any further information which the Seller requires to:
15.4.1 register a financing statement or financing change statement in relation to a security interest or interests held by the Seller against the Buyer;15.4.2 register any other document on the PPSR required to be registered by the PPSA in relation to a security interest or interests held by the Seller against the Buyer; and15.4.3 correct a defect in a document referred to in clause 15.4.1 or 15.4.2;
15.5 the Buyer must not register, or allow to be registered, a financing statement, a financing change statement or any other statement or document in relation to Goods which the Buyer acquired from the Seller in favour of a third party without the prior written consent of the Seller; and15.6 the Buyer must pay to the Seller immediately upon demand by the Seller all costs of and in connection with the Seller registering, amending or removing any security interest held by the Seller against the Buyer on the PPSR or lodging any other document on the PPSR in respect of that security interest which is required under the PPSA or which the Seller deems necessary to protect it’s security interest against the Buyer;
15.7 the following provisions of the PPSA are expressly excluded from, and do not apply to these terms and conditions of sale:
15.7.1 Section 121(4) – enforcement of liquid assets – notice to grantor;15.7.2 Section 125 – obligations to dispose of or retain collateral;
15.7.3 Section 129 – disposal by purchase;
15.7.4 Section 130(a) – notice of disposal of collateral – to grantor;
15.7.5 Section 132(3)(d) – statement of account after disposal;
15.7.6 Section 132(4) – statement of account if no disposal;
15.7.7 Section 135 – notice of retention of collateral;
15.7.8 Section 142 – redemption of collateral;
15.7.9 Section 143 – reinstatement of security agreement; and
15.7.10 Section 157 – verification statements to grantor by secured party.
- Governing Law
These terms and conditions of sale shall be governed by and construed in accordance with the laws of the State of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of that State.
