TERMS AND CONDITIONS OF TRADE – GOODS & SERVICES
1. Definitions
In these Terms and Conditions of Trade:
"Account" means the Customer's account with the Vendor.
"Customer" means the person or entity making the application or any person acting with ostensible authority on behalf of the Customer. "Goods" means goods and/or services supplied by the Vendor to the Customer at any time.
"Guarantor" means any party executing a guarantee of the Account with the Vendor. "Order" or "Orders" means the order or orders of the Customer to the Vendor to supply Goods.
“Contract” means any contract between the Vendor and the Customer for or in relation to the sale and purchase of goods.
"PPSA" means the Personal Property Securities Act 2009
"Vendor" means EIGHT FIVE EIGHT PTY LIMITED or associated entities.
2. Orders
Orders will be on such forms or in such manner as the Vendor may require from time to time.
3. Acceptance
Each Order shall constitute acceptance by the Customer of these Terms and
Conditions of Trade.
4. Prices
Prices are subject to change with notice. All Orders will be charged at the vendor’s current price at the date of order of the Goods. The vendor will endeavour to give the customer reasonable notice of any price changes, but it shall be the customer’s obligation to satisfy themselves as to pricing at the time of placing an order.
5. Delivery
Where the Order makes provision for delivery then delivery shall take place at the place stated in the Order. If no place is indicated then delivery shall be made at the physical address of the Customer set out in the application.
6. Time of Performance
Time shall in no case be of the essence. The Vendor shall not be responsible for any delay in delivery of the Goods and the Customer shall not be entitled to cancel orders because of any such delay. PROVIDED THAT where the vendor becomes aware of any unexpected or unreasonable delay after an order is placed the parties will negotiate in good faith. Dates for delivery are given in good faith and are not to be treated as a condition of sale or purchase. Delivery by the Vendor to a carrier is
deemed to be delivery to the Customer.
7. Terms of Payment
(a) Unless otherwise specified, payment for all Goods shall be made no later than the 20th day of the month following supply.
(b) An administration fee may be charged on all overdue amounts in addition to any other charges pursuant to this clause.
(c) Interest will accrue on all amounts overdue at the rate of 2.5% per month and will be calculated on a day by day basis until payment is made in full.
(d) All costs of or incurred by the Vendor as a result of a default by the Customer including but not limited to administration charges, debt collection costs and legal costs as between solicitor and client shall be payable by the Customer.
(e) If the Customer defaults in any payment or commits any act of bankruptcy or any act which would render it liable to be wound up or if a resolution is passed or proceedings are filed for the winding up of the Customer or if a receiver is appointed for all or any assets of the Customer, the Vendor may cancel any Order without prejudice to any other rights it may have and payment for all completed Orders shall Immediately become due.
8. Quotation
Where a quotation is given by the Vendor for the supply of Goods:
(a) unless otherwise agreed the quotation shall be valid for thirty (30) days from the date of issue;
(b) the quotation shall be exclusive of Goods and Services Tax unless specifically stated to the contrary;
(c) the Vendor reserves the right to alter the quotation because of circumstances beyond Its control.
9. Errors or Omissions
Clerical errors or omissions, whether in computation or otherwise in the quotation, acknowledgment or invoice shall be subject to correction.
10. Risk
Where the vendor has arranged freight, risk shall pass to the customer on delivery, otherwise, from the time of dispatch to the Customer by the Vendor, risk In all Goods supplied shall pass to the Customer and any loss, damage or deterioration to the Goods shall be borne by the Customer. The Customer shall notwithstanding any loss, damage or deterioration to the Goods remain liable to pay for the Goods.
11. Ownership/General Lien
(a) The Vendor shall retain ownership of all Goods supplied until it receives payment in full of all amounts owing by the Customer for all Orders.
(b) If any of the Goods are incorporated in or used as material for other goods before payment is made ownership in the whole of the other goods shall be and remain with the Vendor until payment is made. The Vendor's Security Interest in the Goods shall continue in the terms of section 99 of the PPSA.
(c) The Vendor shall have a right to stop and retrieve the Goods in transit whether or not ownership has passed.
12. Ownership
Until payment is made by the Customer, the Customer agrees to:
(a) ensure the Goods are readily identifiable at all times as the property of the Vendor;
(b) hold the Goods as trustee for the Vendor and will deal with the Goods for and on behalf of the Vendor (but will not hold the Customer out as an agent to any third parties);
(c) if the Goods are resold, the proceeds of re-sale will belong to the Vendor and the Customer shall keep the proceeds of sale in a separate account for which separate records are kept.
13. Merger with Other Goods
If the Goods are attached, fixed or Incorporated into any property of the Customer, by way of any manufacturing or assembly process by the Customer or any third party or otherwise, title in the products and services shall remain with the Vendor until the Customer has made payment for all Goods and where those Goods are mixed with other property so as to be part of or constituent of any new goods title to those new goods shall be deemed to be assigned to the Vendor as security for the full satisfaction by the Customer of the full amount owing by the Customer to the Vendor.
14. Recovery of Goods
(a) In the event of non-payment or if payment of the Customer's Account is overdue the Vendor shall be entitled without prejudice to any right it has at law or in equity to enter the place where the Goods are stored whether the Customer's premises or property or the premises or property of a third party for the purpose of recovering and taking possession of the Goods supplied.
(b) The Customer warrants to the Vendor that where the Goods are stored on the premises or property of a third party the Customer is acting as agent for the third party and has the full authority of the third party to authorise entry on to the premises or property of the third party for the purpose of recovering the Goods without releasing
the Customer from liability.
(c) The Vendor will not be responsible for any damage reasonably caused in the course of removal of Goods supplied either in the possession of the Customer or a third party and the Customer indemnifies the Vendor in respect of damage caused in the removal of the Goods from the property of a third party.
(d) The Vendor may resell the Goods and apply the proceeds towards payment of the Customer's outstanding Account with the Vendor. Any shortfall will remain the liability of the Customer. The Customer Indemnifies the Vendor for all costs and expenses Including legal costs as between solicitor and client which the Vendor may incur in recovering the Goods and any monies owed to it.
15. Warranties
(a) Unless otherwise specified, the Vendor gives no warranty express or implied as to the quality, description or fitness for any particular purpose of the Goods.
(b) Where applicable, manufacturer's warranties will attach to the Goods.
(c) Where Goods supplied are defective in terms of any condition warranty or
guarantee or otherwise do not conform to the Order, the Vendor will at its discretion replace or repair any faulty Goods or pay the Cost of replacing them, but only if a claim is made by the Customer within seven days of delivery of the Goods time being of the essence.
16. Compliance
The Customer shall be solely responsible for obtaining any necessary permits under and for compliance with all legislation, regulations, bylaws or rules having the force of law in connection with the installation and operation of the Goods.
17. Cancellation
The Customer shall not be entitled to cancel an Order other than as allowed pursuant to these Terms and Conditions of Trade.
18. Returns
a) The Customer shall not be entitled to return the Goods other than as allowed pursuant to these Terms and Conditions of Trade.
b) Faulty or wrongly supplied goods see cl 15(c).
c) Goods correctly supplied cannot be returned without the prior consent of the Vendor, and a re-stocking fee may be charged. No credit will be allowed for goods returned in dirty or damaged condition or not in original undamaged packaging.
19. Personal Property Securities Act 2009
(a) The terms "Collateral", "Debtor", "Financing Change Statement", "Financing Statement", "Grantor", "Proceeds", "Secured Party", "Security Agreement" and "Security Interest" have the meanings given in the PPSA.
(b) The Customer acknowledges and agrees that by accepting these terms and conditions, which form part of the Contract and constitute a Security Agreement that covers the Collateral for the purposes of the Australian PPSA:
i. The Vendor holds (as Secured Party) a Security Interest over all of the present and after-acquired goods supplied by the Vendor to the Customer and any Proceeds of the sale of those goods ("Collateral");
ii. That any purchase by the Customer on credit terms from the Vendor or retention of title supply pursuant to clause 11 hereof will constitute a purchase money security interest ("PMSI") as defined under section 14 of the PPSA;
iii. The PMSI granted herein will continue to apply to any goods coming into
existence or proceeds of sale of goods coming into existence;
iv. The Vendor will continue to hold a Security Interest in the goods in accordance with and subject to the PPSA, notwithstanding that the goods may be processed, commingled or become an accession with other goods.
v. Any Vendor Security Interest will be a continuing and subsisting interest in the Collateral with priority to the fullest extent permitted by law over all over registered or unregistered Security Interest;
vi. Until title in the goods pass to the Customer, it will keep all goods supplied by the Vendor free and ensure all such goods are kept free of any charge, lien or Security Interest and not otherwise deal with the goods in a way that will or may prejudice any rights of the Vendor under the Contract or the PPSA; and
vii. In addition to any other rights under these terms and conditions or otherwise arising, the Vendor may exercise any and all remedies afforded to it as a Secured Party under Chapter 4 of the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Buyer, to search for and seize, dispose of or retain those goods in respect to which the Customer has granted a Security Interest to the Vendor.
(c)The Customer undertakes to:
i. Sign any further documents and provide such information, which the Vendor may reasonably require to register, amend or update a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPS Register;
ii. Indemnify and upon demand reimburse the Vendor for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or releasing any Security Interests;
iii. Not register or permit to be registered a Financing Change Statement in the Collateral without the prior written consent of the Vendor; and
iv. Provide the Vendor not less than 7 days prior written notice of any proposed change in the Customer's name, address, contact numbers, business practice or such other change in the Customer's details registered on the PPS Register to enable the Vendor to register a Financing Change Statement if required.
(d) The Vendor and the Customer agree that sections 96, 125, 132(3)(d) and 132(4) of the PPSA do not apply to the Security Agreement created under this Contract.
(e) The Customer hereby waives its rights to received notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
(f) The Customer waives its rights as a Grantor and/or a Debtor under sections 142 and 143 of the PPSA.
(g) Unless otherwise agreed in writing by the Vendor, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA. The Customer shall unconditionally ratify any actions taken by the Vendor under this clause 19.
(h) This clause 19 will survive the termination of the Contract to the extent permitted by law.
(i) The parties declare that in respect of any goods physically located within Australia, the law of New South Wales, Australia, shall govern the rights and obligations under this clause 19 and each party submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia.