Terms and Conditions
TERMS AND CONDITIONS OF TRADE
All dealings between the Company and Customer relating to any product and/or services are subject to the following Terms and Conditions of Trade unless otherwise agreed in writing.
1. The following definitions apply to this Application:
a. Account or Account means the trading account entered into between the Company and the Customer and any variation including any increase in credit limit granted by the Company to the Customer from time to time.
b. this Application or this Agreement means this application for commercial credit including any schedules and annexures as varied, amended or supplemented from time to time and the Terms.
c. the Company means Roy Galvin & Co Pty Ltd (ACN 008 719 408) and any business owned or operated by any one or more of the companies or entities herein described and any holding company, subsidiary or related body corporate (as the expression is defined in the Corporations Act) and the successors, transferees and assigns of any one or more of the companies or entities herein described.
d. Customer means the customer described above in this Application and its successors in title, transferees and assigns.
e. Due Date means either (a) the last working day of the month immediately following the month of delivery or supply; or (b) by the time stated for payment in any delivery docket, invoice or statement issued by the Company to the Customer, whichever date is the earlier.
f. Interest means 10% per annum.
g. Guarantor(s) means the person(s) who agree to guarantee payment to the Company of all monies and performance of all obligations of the Customer pursuant to the terms contained in the Guarantee and Indemnity.
h. Goods means and includes all services, products and goods of every kind including (but without limiting the generality of the foregoing) products, equipment, fixtures, merchandise, supplied or delivered to the Customer by the Company, the Company’s manufacturers, agent or supplier, or any of them.
i. PPSA means Personal Property Securities Act 2009 (Cth).
j. Purchase Price means the price stated in any delivery docket, invoice or statement rendered by the Company to the Customer in respect of Goods supplied or delivered to the Customer by the Company, the Company’s manufacturers, agent or supplier or any of them or if no price is stated therein the Company’s normal selling price applicable to the Goods as notified by the Company to the Customer from time to time.
k. Taxable Supply means the same as the meaning in A New Tax System (Goods and Services Tax Act 1999 (Cth) and associated legislation as amended from time to time.
l. Terms means the terms and conditions set out in this Application.
2. In consideration of the Company opening an Account and supplying Goods and credit facilities to the Customer, the Customer warrants and covenants to the Company that the information in this Application is true and complete in every particular and by its execution of this Application accepts and agrees to the Terms.
3. The Customer agrees to accept the credit limit allocated by the Company and that such credit limit may be increased from time to time either at the request of the Customer or at the discretion of the Company and that these Terms will apply to any such increase in credit.
4. The Customer shall pay in full the Purchase Price together with any goods and services tax as stated in any invoice or statement rendered by the Company for Goods delivered or supplied on or before the Due Date.
5. The Company may withhold the supply of Goods if the Account is overdue or unpaid whether in whole or in part.
6. If the Customer fails to pay any monies payable to the Company on the Due Date then all monies owing by the Customer to the Company shall immediately become due and payable.
7. If the Customer fails to pay the Company the Purchase Price to the Company or any part of it on or before the Due Date then the Customer shall pay Interest on that amount or on so much of it as shall remain unpaid from and including the Due Date until the same is paid in full.
8. The Customer shall indemnify the Company against and reimburse the Company for all costs, stamp duty, debt collection agency costs and commission, legal expenses on a solicitor client basis and other expenses and costs incurred by the Company in respect of this Application and any recovery or attempted recovery of either the Purchase Price (whether in whole or part) or possession of the Goods.
9. A notice signed by an officer (as defined in the Corporations Law) of the Company stating the amount payable to the Company pursuant to this Application at a particular date shall be conclusive evidence of the amount of the debt owing by the Customer to the Company.
Formation of Contract
10. Quotations made by the Company will not be construed as an offer or an obligation to supply in accordance with the quotation. The Company reserves the right to accept or reject, at is discretion, any offer to purchase received by it. Only written acceptance by the Company of the Customer’s offer will complete a contract.
11. Placement of an order, either verbally or in writing, will imply acceptance of the Company’s offer and of these terms and conditions.
12. The Customer charges in favour of the Company all of its estate and interest in any real or personal property that the Customer owns at present and in the future with the amount of its indebtedness in this Application until discharged.
13. The Customer appoints as its duly constituted attorney the Company’s secretary from time to time to execute in the Customer’s name and deed, real property mortgage, bill of sale or consent to any caveat the Company may choose to lodge against real property that the Customer may own in any Land Titles Office in any state or territory in Australia, even though the Customer may not have defaulted in carrying out its obligations in this Application.
14. Where the Customer has previously entered into an agreement with the Company by which the Customer has granted a charge, mortgage or other security interest (including a security interest as defined in the PPSA) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this Application and will secure all indebtedness and obligations of the Customer under this Application. The Company may, at its election, vary the terms of such previous charges, mortgage or other securities to reflect the terms in this Application.
15. The Customer hereby undertakes to execute and to procure the execution by the intended guarantor(s) (if any) at its own cost (whenever called upon so to do) a proper legal form of security including but not limited to a legal mortgage to the Company of any real property owned by the Customer or the intended guarantors, a registerable charge over the Customer’s assets, a goods and chattel mortgage, banker’s guarantee, credit insurance policy or other security acceptable to the Company to secure all monies for the time being due or to become due to the Company in relation to the supply of Goods. The said security shall be in a form and contain such powers and provisions as the Company shall reasonably require.
14. The Customer waives any claim for shortage of any Goods delivered if a claim in respect thereof has not been lodged with the Company within seven days from the date of receipt of the Goods by the Customer.
15. The Company shall not be liable for late delivery or non delivery of Goods and under no circumstances shall the Company be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non delivery of Goods.
16. The Company is not responsible for any loss or damage to Goods in transit. The Company shall render to the Customer such assistance as may be necessary to press claims on carriers in relation to the loss or damage to Goods in transit.
17. Any property of the Customer under the Company’s custody or control shall be entirely at the Customer’s risk as regards loss or damage caused to the Goods or by them.
18. If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Company, the Company is unable to perform in whole or in part any obligation under this Agreement, then the Company shall be relieved of that obligation under this Agreement to the extent and for the period that it is so unable to perform and shall not be liable to the Customer in respect of such inability.
19. The Customer acknowledges that the Company does not make any representations or warranties regarding the Goods or any matter which is or might be relevant to the Customer buying or selling the Goods other than the representations or warranties expressed in this Agreement.
20. Until the Customer has paid the Company in full the Purchase Price for all Goods delivered or supplied by the Company to the Customer the following shall apply:
a. ownership of and title to all the Goods shall not pass to the Customer and the Customer shall hold the Goods and each of them on a fiduciary basis and as bailee for the Company;
b. the Customer shall store the Goods separately from other items and in the manner which clearly identifies the Goods as the Company’s property and the Customer acknowledges that if it should process or mix the Goods with other products or items such that the Goods are no longer separately identifiable then the Customer and the Company will be owners in common of the new product;
c. the Customer acknowledges that if it sells any of the Company’s Goods, it sells the Goods as a fiduciary agent of the Company provided that such sales shall not give rise to any obligations on the part of the Company and further the Customer in such circumstances shall hold the proceeds of sale in a separate account on trust for the Company and immediately account to the Company for those proceeds;
d. the risk of the Goods shall pass to the Customer upon delivery or supply of the Goods to the Customer and the Customer agrees to indemnify the Company against all claims demands suits actions for loss or damage howsoever caused by or arising from handling storage transport display or use of the Goods after the same have been delivered or supplied to the Customer;
e. if the Customer does not pay for any of the Goods by the Due Date, the Company is irrevocably authorised by the Customer to enter the Customer’s premises (or any other premises under the control of the Customer or as agent for the Customer if the Goods are stored at such premises) and use reasonable force to retake possession of the Goods without liability for trespass or any resulting damage. The Customer agrees to indemnify and save harmless the Company for all claims by causes of action which may arise by the Company retaking possession and the Customer agrees to pay the Company’s costs of retaking possession. The Company shall be entitled and not obliged to resell any Goods repossessed pursuant to the provisions of this subclause;
f. the Customer shall not pledge or in any way charge by way of security or any indebtedness any of the Goods which are the property of the Company. Without prejudice to any other rights of the Company if the Customer does so all sums whatever owing by the Customer to the Company shall forthwith become due and payable;
g. notwithstanding the provisions above the Company shall be entitled to maintain an action against the Customer for the Purchase Price.
21. The Company reserves it right to refuse to deliver any Goods if the Customer has any monies outstanding beyond the due Date on any account with the Company.
Limitation of liability
22. The Customer agrees:
a. to limit any claim it makes to the cost of replacement of Goods or requiring equivalent Goods.
b. that the Company shall not be liable for any loss or expense arising after seven days from delivery or at all once Goods have been unpacked, affixed and/or otherwise used or applied after which there shall be, deem to be an unqualified acceptance.
c. that the fullest extent legally permissible the Company shall not be liable for any damages for personal injury, any damage to property and/or any contingent consequential, direct, indirect, special or punitive damages due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
d. that the fullest extent legally permissible no other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any way extending to or otherwise relating to or binding upon the Company other than these Terms is made or given by or on behalf of the Company other than by the Terms save and except to the extent otherwise required by law.
23. No dealing between the Company and the Customer shall be or be deemed to be a sale by sample.
24. The Customer shall rely on its own knowledge and expertise in selecting Goods for any purpose and any advice or assistance given by or on behalf of the Company shall be accepted at the Customer’s risk and shall not be deemed to have been given as an expert or adviser nor to have been relied upon;
25. Goods are sold subject to each and every manufacturer’s trading terms and conditions and are protected by each and every manufacturer’s warranty and the Company shall not be liable to the extent that any manufacturer is liable under a manufacturer’s warranty unless otherwise required by law.
26. The Company shall not be liable nor responsible for any failure to comply with any requirement of the Customer or any other person (whether relating to manufacturer, design, fabrication, installation and/or any other particular intended use of any product and/or otherwise) which are not precisely and accurately communicated in writing directly to the appropriate personnel at the Company prior to the entry by the Company into any relevant sales contract.
27. All payments required to be made by the Customer under this Application will be made free of any set off, or counterclaim and without deduction or withholding.
28. Any amount due to the Company from time to time, may be deducted from any monies which may or may become payable to the Customer by the Company.
Taxes and duty
29. All monies payable to the Company and any other consideration for any Taxable Supply shall, unless the Company otherwise directs be deemed at all times to be exclusive of GST.
30. The Customer must pay GST on any Taxable Supply made by the Company to the Customer under this Application. The payment of GST is in addition to any other consideration payable by the Customer for a Taxable Supply.
31. If the Company becomes liable to pay any duty, tax, excise or levy in respect of the amounts received from the Customer as a result of:
a. any legislation becoming applicable to the subject matter of this Application; or
b. any changes in legislation or its interpretation by a Court of competent jurisdiction or by an authority charged with its administration; then the Customer must pay the Company these additional amounts on demand.
Cancellation of terms of credit
32. The Company may at any time or from time to time without reason close the Account or refuse to extend any further credit to the Customer.
33. The Company’s approval of this Application shall not oblige the Company to extend to the Customer credit at all or in any particular amount.
34. Upon cancellation with or without notice all liabilities incurred by the Customer became immediately due and payable to the Company
Insolvency and default
35. Upon the appointment of an Administrator, Receiver, Receiver & Manager, Liquidator or Trustee in Bankruptcy to the Customer or a breach of any of these terms by the Customer, the Company may, inter alia, retain all monies paid, cease further deliveries, recovery from the Customer any loss of profits arising and/or at the Company’s election take immediate possession of products not paid for without prejudice to any other rights the Company may have and without the Company being liable in any way to any person.
36. The supply of goods by the Company shall be governed by the laws of Western Australia.
37. The Customer acknowledges and agrees that any contract for the supply of Goods between the Company and the Customer is formed at the address of the Company.
38. The Company and the Customer agree to submit to the non-exclusive jurisdiction of the Courts located in Perth, Western Australia.
Provision of further information
39. The Customer undertakes to comply with any request by the Company to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.
40. If the Customer is a corporation (with the exception of a publically listed company), it must advise the Company in writing of any change of the proprietors, shareholders or directors of the Customer or any information set out in the Schedule, of such change and the Customer shall indemnify the Company for any loss arising from the Customer’s failure to so notify.
41. In the case of a change of directors or shareholders, the Company may request new guarantors to sign a guarantee and indemnity.
42. If the Customer is a corporation, the Customer warrants that all of its directors have signed this Application and that all of its directors will enter into a guarantee and indemnity with the Company in relation to the Customer’s obligations to the Company.
43. If the Customer is the trustee of a trust (whether disclosed to the Company or not), the Customer warrants to the Company that:
a. The customer enters into this Application in both its capacity as trustee and in its personal capacity;
b. The Customer has the right to be indemnified out of the trust assets before the claims of the beneficiaries;
c. The Customer has the power under the trust deed to sign this Application; and
d. The Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Company.
44. If the Customer enters into this Application as partners, the Customer warrants that all of the partners have signed this Application and that all of the partners will enter into a guarantee and indemnity with the Company in relation to the Customer’s obligations to the Company.
45. If the Customer is a partnership it must not alter its partnership (eg adding or removing partners) without advising the Company.
46. In the case of a change of partners or shareholders, the Company may request new guarantors to sign a guarantee and indemnity
47. Where two or more persons constitute the Customer his/her/its liability shall be joint and several.
48. Any notice or demand required to be served given or made under this Application shall be sufficiently served on the Customer or the Company if addressed to the Customer or the Company (as the case may require) and posted by ordinary mail addressed to the addressee at its usual or last known place of business and shall be deemed served two days after having been posted.
49. The Company shall not be deemed to be in default or breach of any contract as a result of Force Majeure. Force Majeure shall include any cause beyond the reasonable control of the Company including strikes, lockouts, fires, riots, wars, embargos, civil commotions, acts of God or any other activity beyond the Company’s control.
50. This Application constitutes the entire agreement between the parties as to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Application are merged in this Application and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this Application.
51. Any provision of this Application that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect. If that is not possible, that provision must be excluded from this Application but only to the extent necessary to avoid that effect. All other provisions of this Application continue to be valid and enforceable.
52. The Terms shall apply to all Agreements for the purchase of goods by the Customer from the Company subject always to any additional terms and conditions contained in any other relevant agreement or agreements between the Company and the Customer. If any of the provisions for such agreement are inconsistent with the Terms of this Application then the Terms of this Application shall prevail.
53. The Customers agrees that the Terms may be carried, added to, or amended by an authorized office of the Company at any time by written notice to the Customer.
54. Any proposed variation to the Terms by the Customer must be requested in writing and the Company may refuse any such request without providing reasons either orally or in writing.
55. Any variations requested by the Customer will only be binding on the Company if that are accepted in writing.
56. The Customer agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1998 2012 contained in this document.
57. This privacy statement is made pursuant to the Privacy Act and provides information about the Personal Information that the Company collects, and the ways in which it uses that Personal Information.
58. The Company may collect Personal Information about the Customer and/or Guarantor(s) for the Company’s Primary Purposes.
59. The Customer and/or Guarantor(s) consent to the Company collecting, using and disclosing Personal Information (including Sensitive Information) for both its Primary Purposes and purposes other than its Primary Purposes.
60. The Company may collect, and may already have collected, Information from the Customer and/or Guarantor(s), other Credit Providers, Credit Reporting Bodies and other third parties for the purposes of its functions and activities including credit, sales, marketing and administration. If the Information was not collected by the Company it may restrict or impede upon the Company trading with, extending credit to, continuing to extend credit to or extending further credit to the Customer and/or Guarantor(s) or their related bodies corporate. Further, if the Customer chooses not to provide Personal Information, the Company may not be able to provide the Customer with credit account facilities and/or assess persons to be a guarantor(s) of the credit facility.
61. The Customer and/or Guarantor(s) consent to the Company obtaining and making disclosure of Information about the Customer and/or Guarantor(s) from and to a Credit Reporting Body and/or another Credit Provider for any or all of the following purposes: Commercial Credit Purpose, Consumer Credit Purpose Credit Guarantee Purpose or another related purpose.
62. The Company notifies the Customer and/or Guarantor(s) that it may use and/or disclose Credit Eligibility Information under section 21G of the Privacy Act.
63. The Company may provide Personal Information and disclose default information about the Customer and/or Guarantor(s) to any or all of the Credit Reporting Bodies referred to below. The Customer and/or Guarantor(s) consent to such disclosure.
i. Dun & Bradstreet
t: 1300 734 806
ii. Veda Advantage
m: PO Box 964 North Sydney NSW 2059
t: 02 9278 7333
iii. National Credit Insurance Brokers
m: PO Box 3315 Rundle Mall, SA 5000
t: 1800 885 820 10
64. The Customer and/or Guarantor(s) hereby acknowledge that they consent to the Company disclosing Information to the Company’s employees, subsidiaries, employees, agents and related bodies corporate, past, present or prospective Credit Providers of the Customer and/or Guarantor(s) or their related bodies corporate, including for the purpose of that person considering whether to offer to act as Guarantor or offer security for that credit, and/or overseas recipients and recipients who do not have an Australian link. The Company does not disclose Information to overseas recipients.
66. The Customer and/or Guarantor(s) will be deemed to have acknowledged and accepted the terms of this privacy statement by either signing and returning this statement, failing to provide written notification to the Company within 14 days of receipt of this statement that its terms are not accepted, continuing to trade with the Company after receipt of this statement or, if the Customer and/or Guarantor(s) are directors or Guarantors of the Customer, by not taking steps to prevent the Customer from continuing to trade with the Company after receipt of this statement.
67. The terms of this privacy statement operate concurrently with any pre-existing privacy statement, authorisation or
notification, whether contained in our credit application, terms and conditions of trade or otherwise. This privacy statement shall prevail to the extent of any inconsistency
68. For the purposes of this privacy statement, the following definitions apply:
a. Privacy Act means the Privacy Act 1988 Act 2012 (as amended).
b. Primary Purposes means assessment of a credit application, reviewing existing credit terms, assessing Credit Worthiness, collecting overdue payments, assessing credit guarantees (current and prospective), internal management purposes, marketing, sales and business development purposes and direct marketing
c. Information means Personal Information, Sensitive Information, Credit Eligibility Information, Credit Reporting Information and Credit Information, both severally and collectively.
d. Commercial Credit Purpose, Consumer Credit Purpose, Credit Eligibility Information, Credit Guarantee Purpose, Credit Information, Credit Provider(s), Credit Reporting Code, Credit Reporting Body(ies), Personal Information Credit Reporting Information and Sensitive Information each have the same meaning as under the Privacy Act.
e. Creditworthiness Information means information that is both positive (eg. payment information) and negative (eg. defaults or serious credit infringements).