Terms & Conditions

1. INTERPRETATION

In these Terms & Conditions:

(a) Approved Credit Limit has the meaning given to that term in clause 4(d);

(b) Credit Application means any form accepted by the Supplier as an application for credit;

(c) Customer means the person or entity ordering the Goods, as shown on the invoice, purchase order or other document evidencing an order for Goods;

(d) Goods means those products shown on an invoice sold by the Supplier to the Customer from time to time;

(e) GST means the goods and services tax levied under the GST Act;

(f) GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;

(g) PPSA means the Personal Property Securities Act 2009 (Cth); and

(h) the Supplier means each entity whose name and ABN/ACN appears on a Credit Application signed by the Customer, or an invoice issued to the Customer;

2. APPLICATION

(a) These Terms & Conditions apply to all sales of Goods by the Supplier to the Customer unless expressly waived or varied by the Supplier in writing.

(b) These Terms & Conditions prevail over any conditions on the Customer’s order to the extent of any inconsistency.

(i) order of Goods (if the Supplier accepts the order); or

(ii) payment made

by the Customer to the Supplier represents the Customer's unequivocal and irrevocable acceptance that these Terms & Conditions apply as a legally binding contract between the Supplier and the Customer.

(d) The Supplier may, in its absolute discretion, reject any order for Goods.

3. PRICE

(a) The order of precedence for determining the price of the Goods shall be:

(i) the Supplier's current ruling price at the date of delivery;

(ii) the price shown on the Supplier's invoice; and

(iii) any quotation given by the Supplier.

(b) The Supplier makes no warranty that the price of Goods at the date of delivery shall be the same as at the date of order or quotation. Any quote provided by the Supplier shall be open for acceptance for no more than 30 days, unless otherwise agreed by the Supplier in writing.

(d) Unless specifically stated on the Supplier's invoice, prices exclude GST, and the Customer must pay GST in addition to and at the same time as the price is due to be paid.

4. CREDIT

(a) The Supplier may, but is not obliged to, supply the Customer with the Goods on terms that do not require payment in full at the time of delivery. If it does so, this clause applies.

(b) The Supplier may require the Customer to complete a Credit Application as a condition of extending credit.

(d) The Supplier may set and vary credit limits for the Customer from time to time (Approved Credit Limit).

(e) The Supplier may:

(i) vary the Customer's Approved Credit Limit at any time; and/or

(ii) require the Customer to make a payment on or prior to delivery at any time.

(f) The Customer warrants and acknowledges that:

(i) the Customer has read and understood the Credit Application and these Terms & Conditions;

(ii) all of the information provided by the Customer to the Supplier is true and correct in every particular;

(iii) the Customer can pay its debts as and when they fall due;

(iv) each person who submits a Credit Application and makes orders on behalf of the Customer is (or at the time of making each order will be) authorised to do each of those things on behalf of the Customer,

and the Customer promises not to make any claim or seek to withhold any payment or avoid its obligations, in respect of any of the above matters.

(g) If the Customer is a company, each director of the company must execute a guarantee & indemnity (in the form required by the Supplier) as security for obligations and payments due by the Customer to the Supplier under these Terms & Conditions, as a condition of extending credit and/or making supplies to the Customer.

(h) If required, the Customer must immediately procure and deliver executed guarantee/s to the Supplier.

(i) The Customer authorises and consents to the release to the Supplier of any information sought by the Supplier from any bank, financial institution, credit provider, credit reporting agency or register. If requested by the Supplier, the Customer must sign any document needed to enable the Supplier to obtain such information.

(j) The Supplier may obtain, and the Customer must provide, further information from time to time.

(k) The Supplier's rights under paragraphs (i) and (j) above extend to any person who has or is required to give a guarantee under this clause.

(l) The Customer acknowledges and agrees that any credit extended to the Customer by the Supplier is to be applied solely or predominantly for commercial purposes.

5. PAYMENT

(a) Notwithstanding any prior grant of credit to the Customer, the Supplier reserves the right to demand payment prior to delivery in respect of any delivery of Goods.

(b) Payment for the Goods is due no later than 30 days from the end of the month in which the Goods are supplied.

6. INTEREST & CHARGES

The Supplier may charge and the Customer must pay:

(a) interest at the rate of 18% per annum, on all amounts not paid by the due date for payment, with such interest calculated from the due date until the date that all amounts due (including interest) are received as clear funds by the Supplier; and

(b) any other costs or fees incurred or applicable as a consequence of the late payment

7. DELIVERY

(a) For the purpose of these Terms & Conditions, Goods will be deemed to have been delivered at the earliest of any of the following:

(i) when delivered into the possession of the Customer or a carrier engaged by the Customer; or

(ii) when delivered into the possession of a carrier engaged by the Supplier to deliver the Goods to the Customer.

(b) If the Supplier agrees to deliver the Goods to a place other than the Supplier's premises then:

(i) the Customer shall ensure reasonable and proper access at the site specified for delivery, and without limitation must remove temporary fencing and other obstacles and ensure that there are council approved crossing facilities;

(ii) if access difficulties or other delays cause the time spent at the site by the carrier to exceed the standard delivery time, the price of the Goods shall be increased by any additional cost or charge incurred by the Supplier;

(iii) if, by reason of obstruction or poor identification of the site, the Goods are returned to the Supplier, the price of the Goods shall be increased by any cost or charge incurred by the Supplier; and

(iv) where any damage is caused to any roads, footpaths or other property in effecting delivery the Customer shall indemnify and keep indemnified the Supplier for any costs, loss, damage, expense or other claim made against the Supplier arising directly or indirectly from the Supplier attempting to effect or actually effecting delivery.

8. ACCEPTANCE

(a) The Customer shall inspect all Goods immediately upon delivery.

(b) The Customer shall be deemed to have accepted the Goods and shall not make any claim in respect of the Goods unless the Goods are defective and the Customer provides written notice of any alleged defect to the Supplier (defect notice) within seven (7) days of delivery.

(c) If the Customer fails to give a defect notice in accordance with this clause, then subject to any non-excludable condition implied by law, the Goods shall be deemed to have been accepted by the Customer.

(d) The Supplier may, but is not obliged to, accept a cancellation of an order for Goods provided that:

(i) the request for cancellation is made in writing at least seven (7) days prior to the quoted delivery or consignment date; and

(ii) the Customer agrees to pay a cancellation fee determined by the Supplier in its discretion, which fee will be notified to the Customer within sixty (60) days of receipt of the written request for cancellation.

9. RETURN

(a) The Supplier is not obliged to accept return of any Goods.

(b) If the Supplier accepts a defect notice, the Supplier may in its absolute discretion:

(i) accept the Goods for return and either:

(A) credit the Customer’s account for the price of the Goods less any cartage and handling costs in returning the Goods (provided that the Supplier may not deduct the cartage and handling costs where the Supplier admits that through the Supplier's act or omission that incorrect or defective Goods were delivered); or

(B) replace the Goods or supply equivalent Goods; or

(ii) refund any part of the price paid for the Goods.

(c) If the Supplier does not accept a defect notice, it shall not be obliged to accept return of the Goods and clause 20(j) shall apply.

10. TITLE

(a) Title to Goods does not pass to the Customer until payment in full is received by the Supplier from the Customer, and until the price is paid in full the Customer must:

(i) store Goods which have not been paid for separately;

(ii) keep separate records in relation to the proceeds of the sale of any Goods which have not been paid for, hold the proceeds of any such sale upon trust for and immediately remit such funds to the credit of the Supplier; and

(iii) if any Goods are used or mixed with other materials, record the value of Goods so consumed in relation to each unit of finished product and upon sale of any unit of finished product immediately remit that amount from the proceeds of sale to the Supplier.

(b) If the Customer does not pay for any Goods on the due date specified in each invoice, the Supplier is irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer if the Goods are stored at such premises) and use reasonable force to take possession of the Goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer or anyone claiming through the Customer whatsoever.

(c) Even after delivery, the Goods shall remain the property of the Supplier until all outstanding debts owed by the Customer to the Supplier, including part paid debts and secured debts, are paid.

11. SECURITY INTEREST

(a) In this clause 11, terms which are defined in the PPSA have the meaning given to them in the PPSA.

(b) The Customer agrees to grant the Supplier a security interest in all present and after-acquired Goods and their proceeds.

(c) At the request of the Supplier, the Customer agrees to promptly execute any documentation necessary, or to do anything else required by the Supplier, to ensure that the security interest created under these Terms & Conditions shall constitute a first ranking, perfected security interest over the Goods and their proceeds. This includes providing any information necessary for the Supplier to complete a financing statement or financing change statement.

(d) The Customer waives the Customer's right to receive a copy of a verification statement under the PPSA.

(e) The Customer agrees to reimburse the Supplier for all costs and charges incurred, expended or payable by the Supplier in relation to the filing of a financing statement or financing change statement in accordance with these Terms & Conditions.

12. RISK

Risk in the Goods passes to the Customer upon delivery.

13. LIMITATION

(a) The Supplier's liability is limited to the fullest extent permitted by law.

(b) To the extent permitted by statute, any express or implied warranties or representations are void if the Customer or any other person:

(i) interferes with, alters or removes any packaging or labelling of any of the Goods;

(ii) interferes with, alters, adds or removes any part of the Goods;

(iii) causes or permits any contamination of the Goods; or

(iv) fails to comply with manufacturer's instructions in relation to the use, application, storage and integrity of the Goods.

(c) To the extent permitted by law, the liability of the Supplier from the failure of any Goods to comply with the Consumer Guarantees or any other warranty or condition implied by law shall be limited to (at the Supplier's option):

(i) the replacement or resupply of the Goods;

(ii) the cost of replacement or resupply of the Goods;

(iii) the repair of the Goods; or

(iv) the cost of the repair of the Goods.

14. TERMINATION

The Supplier may in its absolute discretion (at any time and regardless of whether or not the Customer has complied with these Terms & Conditions):

(a) terminate any credit accommodation granted to the Customer; and/or

(b) demand immediate payment from the Customer of all amounts due (notwithstanding that a due date for payment may not have arrived), and the Supplier may impose interest and other charges in accordance with clause 6; and/or

15. REFUNDS

Any amount refunded by the Supplier shall be refunded without interest and after deducting any amounts which the Supplier may be entitled to charge and the Customer expressly agrees that it will make no claim for interest on moneys refunded.

16. PROVISION OF FURTHER INFORMATION

(a) The Customer undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the Customer's creditworthiness, including an updated credit application.

(b) If the Customer is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.

17. CORPORATIONS

If the Customer is a corporation, the Customer warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Customer's obligations to the Supplier.

18. TRUSTEE CAPACITY

If the Customer is the trustee of a trust (whether disclosed to the Supplier or not), the Customer warrants to the Supplier that:

(a) the Customer enters into this agreement in both its capacity as trustee and in its personal capacity;

(b) the Customer has the right to be indemnified out of trust assets;

(d) the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.

The Customer must give the Supplier a copy of the trust deed upon request.

19. PARTNERSHIP

(a) If the Customer enters into this agreement as partners, the Customer warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Customer's obligations to the Supplier.

(b) If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a new trading application.

20. GENERAL

(a) Time: Time is of the essence of these Terms & Conditions.

(b) Force Majeure: The Customer releases the Supplier from any claim, liability or responsibility concerning late delivery or failure to deliver Goods if this is due to strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, government law or regulation or requirement or any other cause beyond the control of the Supplier and no such failure shall entitle the Customer to cancel and order or withhold payment.

(i) These Terms & Conditions contain the entire agreement between the parties and supersede all previous agreements concluded between the parties. Each order and invoice (or delivery slip) shall constitute a binding and enforceable contract between the Supplier and the Customer on the terms set out in these Terms & Conditions.

(ii) Any attempt by the Customer to impose any variation or additional terms inconsistent with these Terms & Conditions shall not bind the Supplier.

(d) Severability: If any term agreement or condition of these Terms & Conditions or the application thereof to any person or any circumstance shall be or become illegal, invalid or unenforceable, the same shall be read down, if such reading down is possible, and if found to be impossible, shall be severed and the remaining terms and agreements and conditions shall not be affected.

(e) Proper law: These Terms & Conditions are to be interpreted in accordance with the Acts of the State of Victoria Australia, and the parties submit to the jurisdiction of the Courts of that State.

(f) Non Merger: A provision of these Terms & Conditions which can, and is intended to, operate after the effective date remains effective.

(g) Confidentiality:

(i) The Customer acknowledges the confidential nature of its dealings with the Supplier and the Supplier's intellectual and industrial property rights in and to the Goods.

(ii) The Customer shall not, without the Supplier's prior consent in writing, copy or disclose or cause to be copied or disclosed any details of its dealings with the Supplier to a third party except with the prior written consent of the Supplier.

(h) Privacy: Any personal information collected by the Supplier will be dealt with in accordance with the Supplier's privacy policy.

(i) To enable the Supplier to assess the credit application or to review any existing credit, the Customer and Guarantors authorise the Supplier to obtain:

(A) From a credit reporting agency a credit reports containing personal information about the Customer and Guarantors in relation to credit provided by the Supplier (section 18K(1)(a) of the Privacy Act 1988);

(B) A report from credit reporting agency containing personal information about the Customer and the Guarantors (section 18K(1)(b) of the Privacy Act 1988);

(C) A report containing information about the Customer’s and the Guarantors’ commercial activities or commercial credit worthiness from a business which provided information about the commercial credit worthiness of a person or an entity in relation to credit provided by the Supplier section 18E(4) (c) of the Privacy Act 1988)

(ii) The Customer authorises the Supplier to provide certain personal information about the Customer under section 18K (1) (a) of the Privacy Act 1988). The information which may be given to an agency is covered by section 18E (1) of the Privacy Act 1988) and includes

(A) The fact that application for credit has been made;

(B) The fact that the Supplier is a credit provider to the Customer;

(D) Advice that payments are no longer overdue;

(E) Cheques drawn by the Customer in excess of $100 that have been dishonoured more than once;

(F) In specified circumstances, that in the opinion of the Supplier the Customer has committed a serious credit infringement;

(G) That the credit provided to the Customer by the Supplier has been discharged.

(iii) In accordance with section 18N(1)(B) of the Privacy Act 1988, the Customer authorises the Supplier to give and obtain from credit providers names in this credit application and credit providers that may be names in a credit report issued by a credit reporting agency information about the Customer’s credit arrangement. The Customer acknowledges that the information can include any information about the Customer’s credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or received from each other under the Privacy Act 1988.

(i) Evidence: The quantity, description and place and date of delivery of the Goods as indicated on the Supplier's invoice, delivery docket or copies thereof shall be conclusive evidence of the quantity, description and place and date of delivery of the Goods.

(j) Dispute Resolution:

If a dispute:

(i) arises out of, or in any way in connection with, or otherwise relates to the supply of Goods, these Terms & Conditions or the breach, termination, validity or subject matter thereof, or as to any related claim at law, in equity or pursuant to any statute, and

(ii) cannot be resolved between the parties within a reasonable time, the parties agree to refer their dispute to Arbitration administered by the Australian Commercial Disputes Centre (ACDC). The Arbitration shall be conducted in Ballarat (unless otherwise agreed) in accordance with the ACDC Rules for Arbitration which are operating at the time the dispute is referred to ACDC and which terms are hereby deemed incorporated into these Terms & Conditions.

(k) Variation

The Supplier may vary these Terms & Conditions from time to time, by notice in writing to the Customer.