By receiving Goods and Services from the Seller, the Client agrees to be bound to the following Terms and Conditions of Sale and Supply of Goods. These Terms and Conditions create a security interest in favour of the Seller for the purposes of the Personal Property Securities Act 2009 (Cth).
Definitions
In this agreement:
Agreement means these Terms and Conditions of Sale and Supply of Goods and each Purchase Order delivered by the Seller to the Client for the supply of Goods (as applicable);
Client means the person/s as specified in any Agreement, Invoice, Purchase Order or Quotation as provided by the Seller to the Client, and if there is more than one Client is a reference to each Client jointly and severally. This includes the executors, administrators, successors and permitted assignees of that person or company;
Credit Facility means any credit application granted by the Seller;
Delivery Date means the date by which the Goods or Services must be supplied to the Client, as specified in the Purchase Order.
Goods means all Goods or Services supplied by the Seller to the Client at the Client’s request from time to time in accordance with a Purchase Order and/or this Agreement and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Client (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
Guarantor means that person/s or entity, who agrees to be liable for the debts of the Client on a principal debtor basis;
Price means the Price payable for the Goods as agreed between the Seller and the Client in accordance with clause 5 below.
Purchase Order means any order or request made by the Client for the supply by the Seller of Goods and/or services in any form and includes an oral request for the supply of goods, or an invoice, proposal or quote provided by the Seller at the Client’s request;
Seller means All Char Trading Pty Ltd and its successors and assigns or any person acting on behalf of and with the authority of All Char Trading Pty Ltd.
Services means all Services supplied by the Seller to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
Variation means changes to the original scope of works, including changes that are beyond the control of the Seller such as staggered timelines rather than continuous working days, delayed building works, change in equipment schedule, damage or interference of installed equipment by others, or any other circumstances beyond the control of the Seller. If also includes expenses which arise from hidden or unknown contingencies that were not observable at the time or were not clearly communicated by the Client during initial discussions regarding job specifications so as to be included in the original quotation.
Australia Consumer Law (“ACL”) and Fair Trading Acts (“FTA”)
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the ACL or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
Acceptance
- Any instructions received by the Seller from the Client or for the supply of Goods and/or the Client’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
- Where more than one Client has entered into the agreement, the Clients shall jointly and severally liable for all payments of the Price.
- Upon acceptance of these terms and conditions by the Client, the terms and conditions are binding and can only be amended with the written consent of the Seller.
- The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
Quotation
- As all products the Seller orders are exclusive and specific for each job, the acceptance of the Seller’s quotation is defined as an order and request by the Client to commence services and supply of Goods.
- Once a quotation has been issued, it remains valid for 30 days unless withdrawn by the Seller, after which a revised quotation may be necessary. Any variation to quantities or requested services may result in a variation to the quotation and the quoted price.
- By signing the quotation, the Client acknowledges that the order is accepted and that the Client has read and understood the Terms and Conditions of Sale and Supply of Goods and has agreed to the Terms and Conditions of Sale and Supply of Goods contained in this Agreement.
Price and Payment
- At the Seller’s sole discretion, the Price shall be either:
- as indicated on invoices provided by the Seller to the client in respect of Goods supplied; or
- the Seller’s quoted Price (subject to Clause 5.2) which shall be binding upon the Seller provided that the Client shall accept the Seller’s quotation in writing within thirty (30) days.
- The Seller reserves the right to change the Price in the event of a Variation to the Seller’s quotation.
- The Seller requires a 10% deposit of the Price to be paid at the time of acceptance of the Seller’s quotation. Goods shall not be ordered or services commenced by the Seller until receipt of the 10% deposit.
- The Seller shall issue progress claims on or from the 15th day of each month and on or from the last day of each month.
- The Client must pay the Seller’s progress claim within thirty (30) days after receipt of the Seller’s progress claim.
- Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Seller.
- GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
Credit Limit and Payment Terms
- Any credit limit approved by All Char Trading Pty Ltd must not be exceeded. The Client agrees that All Char Trading Pty Ltd may review and revise the Client’s credit limit at any time.
- All Char Trading Pty Ltd reserves the right to refuse to supply the Client with Goods and Services on credit, regardless if the Client has not exceeded its credit limit.
- The Client acknowledges and accepts that payment terms for balances on account or credit are “net thirty (30) days”, with payment being due within thirty (30) days from the date of the invoice.
- The Client acknowledges and accepts that the approved Credit Facility cannot be used to pay for invoices requesting deposit payments.
Delivery, Packing and Packaging of Goods
- Where the Purchase Order relates to Goods, the price specified on the Purchase Order includes packaging and delivery. The Seller must package, deliver and unload the Goods in accordance with the Purchase Order including, but not limited to, delivering Goods on the Delivery Date to the delivery location stated on the Purchase Order. If no such address is nominated, then the delivery will be deemed to occur at the time when the Goods are ready for collection at the Seller’s premises.
- The Seller will use suitable packaging and delivery methods (having regard to the nature of the Goods) to ensure the Goods are delivered in good condition and without damage.
- The Client shall pay to the Seller packing, crating and delivery charges in accordance with the Seller’s current rates as at the date of dispatch. If there is no current rate, then a reasonable delivery charge shall be paid by the Client.
- The Seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Client within 14 days of a request by the Seller for such information.
- The Client authorises the Seller to deliver Goods to the place nominated by the Client and to leave the Goods at such place whether or not any person is present to accept delivery. The Seller shall not be liable on any basis whatsoever for loss suffered by the Client after delivery to the nominated delivery place.
- The Seller shall not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated place for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by the Seller to be authorised by the Client to sign or otherwise take delivery, then such signed receipt or other acknowledgment shall be conclusive evidence of the Client’s acceptance of the goods delivered.
- Any times quoted for delivery are estimates only and the Seller shall not be liable to the Client for any failure to deliver or for delay of Goods occasioned by strike, lockout or other industrial dispute, shortage of stock, shortage of labour, lack of skilled labour, delays in transit, fire, flood, hostility, civil commotion or any other cause whatsoever whether or not beyond the control of the Seller.
- The Client shall not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.
- The Seller reserves the right to deliver Goods by instalments and each instalment shall be deemed to be sold under a separate agreement. Failure to deliver any instalment or deliver any instalment on time shall not entitle the Client to repudiate the agreement in whole or in part.
Default and Consequences of Default
- If the Client defaults in payment of any invoice when due, the Client shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
- Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
- Without prejudice to the Seller’s other remedies at law, the Seller shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
- any money payable to the Seller becomes overdue, or in the Seller’s opinion the Client will be unable to meet its payments as they fall due; or
- the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Overdue invoices and interest charges
- The Client acknowledges and agrees that the Seller will be entitled to charge interest on an amount not paid by the due date at a rate of 10% per annum, which will accrue daily (or part thereof) from the due date for payment to the date that payment is received in full. The Client further agrees that subsequent payments made by the Client shall be allocated first to interest charges and then to unpaid invoices in the order in which the invoices were issued by All Char Trading Pty Ltd.
- The Client acknowledges and agrees that any sums owed by the Client to Seller under the Credit Facility and any contract to which these terms and conditions apply will be made free of any set-off or counterclaim whatsoever, and without deduction or withholding whatsoever.
Disputes
- Any Disputes in relation to the Goods must be communicated to the Seller in writing within 24 hours of delivery. In the event that no communication is received by the Seller within the 24-hour period, the Goods are deemed to be accepted by the Client.
- The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
- If a dispute arises relating to this Agreement, the parties agree to negotiate to settle the dispute before litigation.
Risk
- Risk in any Goods to be supplied to the Client passes to the Client immediately upon the earlier of:
- the Seller’s notification that those Goods are available for collection; or
- upon delivery to the delivery address advised by the Client.
whether or not the Client collects the Goods or refuses delivery.
- The Client must insure the Goods on or before Delivery.
- If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions of Sale and Supply of Goods by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
- The Seller shall not be liable for any loss or damage to the Goods caused by outside agents. Where the Client requests the Seller to repair such damage then the Seller reserves the right to charge the Client for any costs incurred in rectifying such damage.
Title to Goods (including any incidental items supplied as part of any Services)
- The Seller and the Client agree that ownership of the Goods shall not pass until:
- the Client has fully paid the Seller all amounts owing to the Seller for the particular Goods; and
- the Client has met all its other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client.
- Receipt by the Client of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.
- The Client further acknowledges and agrees that if it does not pay for any Goods within thirty (30) days from the date of invoice, then:
- where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Client are met; and
- until ownership of the Goods passes to the Client in accordance with clause 12.1, that the Client is only a bailee of the Goods and must return the Goods to the Seller on request.
- the Client holds the benefit of the Client’s insurance of the Goods on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
- the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand.
- the Client irrevocably authorises the Seller and its officers, employees and agents to enter any premises where the Seller believes the Goods are kept and use reasonable force to take position of the Goods without liability for the tort of trespass, negligence or payment of any compensation to the Client whatsoever.
- the Seller may recover possession of any Goods in transit whether or not delivery has occurred.
- the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Seller.
- The Seller will be entitled to keep and resell any Goods repossessed as aforesaid, and recover from the Client the amount by which the price of the Goods supplied under any contract to which these terms and conditions apply exceeds the amount so received together with all costs and expenses occasioned by the default of the Client on amounts due in the Credit Facility and any contract to which these terms and conditions apply.
- the Seller may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
- Until such that time ownership in the Goods passes to the Client, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.
Defects
- The Client shall inspect the Goods on delivery and shall within fourteen (14) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Client is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods except where the Client has acquired Goods as a consumer within the meaning of the ACL (CWIth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the Client’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
- Goods will not be accepted for return other than in accordance with clause 13.1 above.
Termination
- The Seller may cancel any contract to which these terms and conditions apply and/or Credit Facility or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
- In the event that the Client cancels the delivery of Goods, the Client shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
- Any termination of this agreement will not affect any accrued rights or remedies of either party.
Personal Property Securities Act 2009 (“PPSA”)
- In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPS
- Upon assenting to these Terms and Conditions of Sale and Supply of Goods in writing, the Client acknowledges and agrees that these Terms and Conditions of Sale and Supply of Goods constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Seller for Goods/Services – that have previously been supplied and that will be supplied in the future by the Seller to the Client.
- The Client undertakes to:
- promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
- register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement referred to in clause 3(a)(i) or 15.3(a)(ii);
- indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
- not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Seller;
- immediately advise the Seller of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
- The Seller and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
- The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
- The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
- Unless otherwise agreed to in writing by the Seller, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
- The Client must unconditionally ratify any actions taken by the Seller under clauses 3 to 15.5.
- Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
- In consideration of the Seller agreeing to supply the Goods, the Client and its shareholders and Directors and Guarantors to these Terms and Conditions of Sale and Supply of Goods and Credit Facility, agree to charge all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client and its shareholders, Directors and Guarantors either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money which are now or in the future become owing to the Seller whether pursuant to a credit facility or otherwise until such monies are paid in full by the Client for any contract to which these terms and conditions apply).
- The Client charges in favour of All Char Trading Pty Ltd all of its estate and interest in any personal property that the payment of all monies which are now or in the future become owing to the Seller whether pursuant to a Credit Facility or to any contract to which these terms and conditions apply or otherwise until such monies are paid in full by the Client.
- The Client and its shareholders and Directors and Guarantors to these Terms and Conditions of Sale and Supply of Goods indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause.
- The Client and its shareholders and Directors and Guarantors to these Terms and Conditions of Sale and Supply of Goods irrevocably appoints the Seller and each director of the Seller as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 16 including, but not limited to, signing any document on the Client’s behalf and as the Client’s act and deed any real property mortgage, bill of sale or consent to a caveat that All Char Trading Pty Ltd may choose to lodge against real property that the Client may own in any Land Titles Office in any state or territory of Australia even though the Client may not have defaulted in carrying out its obligations hereunder.
Guarantee
- The Guarantor unconditionally guarantees to the Seller:
- the due and punctual payment by the Client of:
- all moneys due and payable from time to time or to become due and payable from time to time, to the Seller by the Client with regard to or in connection with these Terms and Conditions of Sale and Supply of Goods and/or the Credit Facility; and
- all other moneys which the Client either alone, jointly, severally, or jointly and severally with any other person, now or from time to time is, or becomes actually or contingently liable to pay to the Seller with regard to or in connection with these Terms and Conditions of Sale and Supply of Goods and/or the Credit Facility; and
- the due and punctual observance and performance by the Client of all its other liabilities, obligations and agreements (whether monetary or non-monetary, present or future, actual or contingent) to the Client pursuant to or in connection with these Terms and Conditions of Sale and Supply of Goods and/or the Credit Facility.
Indemnity
- The Client and its shareholders and Directors and Guarantors to these Terms and Conditions of Sale and Supply of Goods indemnifies and keeps indemnified the Seller, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Client) against the Seller or, for which the Seller is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these Terms and Conditions of Sale and Supply of Goods and/or the Credit Facility.
- This includes, but is not limited to, any legal costs incurred by the Seller in relation to meeting any claim or demand or any party/party legal costs for which the Seller is liable in connection with any such claim or demand.
- This provision remains in force after the termination of these Terms and Conditions of Sale and Supply of Goods and/or Credit Facility.
Privacy Act 1988
- The Client agrees for the Seller to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Seller.
- The Client agrees that the Seller may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
- to assess an application by the Client; and/or
- to notify other credit providers of a default by the Client; and/or
- to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
- to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two years.
- The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
- The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other agreed purposes or required by):
- the provision of Goods; and/or
- analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
- enabling the collection of amounts outstanding in relation to the Goods.
- The Seller may give information about the Client to a CRB for the following purposes:
- to obtain a consumer credit report;
- allow the CRB to create or maintain a credit information file about the Client including credit history.
- The information given to the CRB may include:
- personal information as outlined in 1 above;
- name of the credit provider and that the Seller is a current credit provider to the Client;
- whether the credit provider is a licensee;
- type of consumer credit;
- details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
- advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Seller has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
- information that, in the opinion of the Seller, the Client has committed a serious credit infringement;
- advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
- The Client shall have the right to request (by e-mail) from the Seller:
- a copy of the information about the Client retained by the Seller and the right to request that the Seller correct any incorrect information; and
- that the Seller does not disclose any personal information about the Client for the purpose of direct marketing.
- The Seller will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this agreement or is required to be maintained and/or stored in accordance with the law.
- The Client can make a privacy complaint by contacting the Seller via e-mail. The Seller will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at oaic.gov.au.
General
- The failure by the Seller to enforce any provision of these Terms and Conditions of Sale and Supply of Goods shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision.
- If any provision of these Terms and Conditions of Sale and Supply of Goods shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- These Terms and Conditions of Sale and Supply of Goods and any contract to which they apply shall be governed by the laws of the state in which the Seller has its principal place of business and are subject to the jurisdiction of the courts in that state.
- Where applicable, nothing in this agreement is intended to have the effect of contracting out of the Competition and Consumer Act 2010 (CCA). The Seller shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Seller of these Terms and Conditions of Sale and Supply of Goods (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
- In the event of any breach of these Terms and Conditions by the Seller, the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
- The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Seller.
- A quotation shall not constitute an offer to sell goods to the Client. No contract for the supply of goods shall exist between the Seller and the Client until a Client’s order for Goods has been accepted by the Seller (such acceptance of the Client’s orders may be made and communicated by the Seller in writing or by overt act of acceptance).
- The Client agrees that the Seller may review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which the Seller notifies the Client of such change.
- Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- Both parties warrant that they have the power to enter into this agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this agreement creates binding and valid legal obligations on them.
- No changes to these terms and conditions can be made without the written consent of the Director of the Seller.
