Terms and Conditions
- to be bound by the provisions of these Terms;
- confirms that it has read and understood the provisions of these Terms; and
- that the Goods are supplied subject to the provisions of these Terms.
- DISCLAIMER AND PRICE
- Any advice, recommendation, information, assistance or service provided by the Supplier in relation to the Goods or their use of application is given in good faith and is believed by the Supplier to be appropriate and reliable but the Supplier does not warrant the suitability of the Goods supplied for any purpose whatsoever.
- An order is accepted by the Supplier when the Supplier accepts, in writing (including by electronic means), an offer from the Customer or provides the Customer with the Goods.
- Unless otherwise stated by the Supplier in writing, prices quoted by the Supplier are ixclusive of GST and transportation and delivery costs, insurance and any other tax levies or duties imposed on or in relation to the Goods, which additional costs and other amounts are also the Customer’s responsibility.
- The risk in the Goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the Goods being delivered to the Customer.
- To the extent permitted by law, the Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer or third parties arising out of the use or possession of any of the Goods.
- PASSING OF PROPERTY
- Where the Supplier has not been paid and the Supplier delivers the Goods to the Customer, then the Customer agrees with the Supplier to keep the Goods as a fiduciary for the Supplier, and the Customer shall store the Goods separately and in a manner that clearly shows the ownership of the Supplier. All unpaid Goods shall be returned to the Supplier if the Customer becomes bankrupt, or if a company, goes into liquidation or receivership or any form of insolvency administration.
- If any Goods are used in a manufacturing process or are mixed with other materials or commingled, the Customer shall record the value of Goods so used in relation to each unit of finished product and upon sales of any unit of finished product immediately remit that amount from the proceeds of sale to the Supplier.
- Until the Supplier receives full payment in cleared funds for all Goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer:
(ii) the Customer must not create or allow to be created any security interest or any other form of encumbrance over the Goods;
(iii) the Customer must not claim any lien or interest in the Goods to secure any debt or obligation that the Supplier may owe to the Customer; and
(iv) the Customer must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods; and
(v) the Supplier may, without notice, enter any premises where it suspects the Goods are and remove them, notwithstanding that they may have been attached to other Goods not the property of the Supplier, and for this purpose the Customer irrevocably licenses the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action.
- Personal Property Securities Act
- The Customer acknowledges that the Goods are classified as inventory for the purpose of section 20(2)(b) of the PPSA.
- The Customer irrevocably consents to the Supplier registering its security interest on the Personal Property Securities Register to note its interest under this clause.
- The Customer must do all things (including signing any document) and provide all information necessary to enable the Supplier to perfect and maintain the perfection of any and each security interest granted to the Supplier by the Customer.
- If required by the Supplier, the Customer must pay all costs associated with the registration, maintenance and withdrawal of any security interest on the Personal Property Securities Register which secures the Customer’s obligations under any agreement with the Supplier.
- If required by the Supplier, the Customer agrees to immediately execute a charge over all of its circulating and non-circulating assets (as defined in the PPSA) and/or any other instrument of security, in terms satisfactory to the Supplier.
- The Customer waives its rights to receive notices of:
(ii) a proposal to dispose of collateral under section 130 of the PPSA;
(iii) a statement of account under sections 132(3)(d) and 132(4) of the PPSA;
(iv) any other occurrence in respect of which the parties agree to waive notice under the PPSA at any time.
- The Customer also waive its right:
(ii) to reinstate this Agreement under section 143 of the PPSA.
- The rights and powers conferred on the Supplier by this document or the law are in addition to any rights and powers conferred by the PPSA.
- For the avoidance of doubt, in addition to the powers under section 125 of the PPSA, the Supplier may take any action after default authorised by this document or the law, including delaying any disposal, leasing or action to retain any collateral.
- The Customer waives its rights to receive notice from the Supplier of a registration event under section 157(1) of the PPSA.
- The Supplier will make all reasonable efforts to have the Goods delivered to the Customer on any date agreed on between the parties as the Delivery Date, but the Supplier shall be under no liability whatsoever should delivery not be made on such date.
- Notwithstanding that the Supplier may have delayed or failed to deliver the Goods (or any of them) promptly, the Customer shall be bound to accept delivery and to pay for the Goods in full once delivered.
- If delivery is attempted and is unable to be completed, the Customer is deemed to have taken delivery of the Goods. The Customer may, in the Supplier’s reasonable discretion, be liable for any reasonable storage charges.
- The Supplier’s delivery record shall be prima facie proof of the contents stated in it.
- PAYMENT AND DEFAULT
- Unless otherwise agreed expressly in writing, the terms of payment shall be 14 or 30 days from the date of the invoice issued by the Supplier in relation to the relevant delivery or order.
- Payment by cheque shall not be deemed made until the cheque has cleared.
- The Supplier may refuse, cancel or change any provision of credit to the Customer at any time upon notice.
- The Supplier reserves the right to request payment of a non-refundable deposit upon placement of an order. Where such request is made, the Supplier is not obliged to process the order until payment of the non-refundable deposit is received in full.
- The time for payment is of the essence.
- In the event that the Customer:
(ii) falsely represents any matter or breaches any provision of any application for credit to the Supplier;
(iii) commits an act of bankruptcy or insolvency or passes a resolution for winding up or a petition is presented for its winding up or enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally;
(iv) has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets,
then, without prejudice to the Supplier’s other rights;
(v) the Supplier may suspend the further supply of Goods;
(vi) all amounts payable to the Supplier will, whether or not due for payment, become immediately payable;
(vii) the Supplier may charge the Customer interest on any amount outstanding at the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Vic) calculated daily on any overdue amount;
(viii) the Supplier may cancel or change the terms of payment before supply of Goods to the Customer;
(ix) the Supplier may terminate any contract forthwith by written notice to the Customer; and / or
(x) the Supplier may charge the Customer for all expenses and costs (including legal costs on a solicitor / own client basis) incurred resulting from the default or any other matter in this clause 6(f) in relation to the exercise of the Supplier’s rights against the Customer.
- Unless otherwise stated and to the extent permitted by law, these Terms do not include by implication of any other term, warranty or condition in respect of the merchantability, acceptability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials, workmanship or performance of the Goods or any contractual remedy for their failure.
- To the extent permitted by law, the Supplier will not be liable for any indirect or consequential losses of expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or liability to any other party.
- Nothing in these Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods or the provision of Services which cannot be excluded, restricted or modified.
- The Supplier is bound by the Privacy Amendment (Private Sector) Act 2000 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the National Privacy Principles.
- The Supplier requires that the Customer comply with the National Privacy Principles in connection with any personal information supplied to it by the Supplier in connection with any agreement between the Customer and the Supplier.
- DISPUTE RESOLUTION
- A party (Initiating Party) claiming that a Dispute has arisen must give the other party (Recipient Party) a notice setting out brief details of the Dispute (Dispute Notice). Within 5 Business Days of service of a Dispute Notice, the Recipient Party must give the Initiating Party a notice setting out brief details of the Recipient Party’s position on the Dispute (Reply Notice).
- If Dispute and Reply Notices are given, the parties will enter into good faith discussions with the objective of settling the Dispute. At least one meeting of the authorised representatives must take place within 10 Business Days of service of a Reply Notice.
- If the Dispute continues to be unresolved, the parties must submit the Dispute to mediation in accordance with the Australian Commercial Disputes Centre (ACDC) Guidelines for Commercial Agreements.
- The parties will agree on the appointment of mediator. If the Parties do not agree on the mediator to be appointed within 10 Business Days of either Party referring the Dispute to mediation, then the mediator is to be appointed by the ACDC.
- The costs and expenses of the mediator will be shared by the parties equally.
- This dispute resolution clause will not be a bar to the commencement of legal proceedings or taking of immediate action where the Supplier considers in its sole discretion that it is necessary to do so.
- The Supplier retains the right to possession and ownership of any pallets used for delivery of the Goods and the Customer agrees to indemnify the Supplier in respect of any pallets not returned in good order and condition to the Supplier within 28 days of delivery of the Goods.
- These Terms shall be governed by the laws of the State of Victoria. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in the State of Victoria and all courts authorised to hear appeals from those courts.
- The Supplier’s failure to enforce any of these Terms shall not be construed as a waiver of its rights.
- These Terms are personal to the Supplier and cannot be assigned by the Customer, without the Supplier’s written consent.
- If any of these Terms is unenforceable it must be read down to be enforceable, or it if cannot be read down, the term may be severed from these Terms without affecting the enforceability of the remaining Terms.
- A notice must be in writing and handed personally or sent by email, facsimile or pre-paid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed received on confirmation of successful transmission.
- No rule of construction applies to the disadvantage of the Supplier because it was responsible for the preparation of these Terms or any other agreement between the parties.
- The Supplier may amend these Terms at any time and the Terms (as amended) will apply to any subsequent sale by the Customer to the Supplier.
“collateral” has the meaning under the PPSA;
"Customer" means the person, jointly and severally if there is more than one, acquiring Goods from the Supplier;
“Goods” means the products ordered from the Suppler by the Customer;
“GST” means the goods and services tax as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or any consumption tax imposed by government, whether at point of supply or at some other specified occurrence, by whatever name and includes (without limitation) a broad-based consumption or indirect tax and value-added tax;
“Personal Property Securities Register” has the meaning under the PPSA;
“PPSA” means Personal Property Securities Act 2009 (Cth);
“security interest” has the meaning under the PPSA;
“Terms” means the these terms and conditions of sale as amended by the Supplier from time to time.