General Terms and Conditions of Carona Group ABN 70895404358 40 Livingstone Street, LAWSON NSW 2783 24 September 2012
Definitions
In these General Terms and Conditions and in these definitions:
“Charges” means the fees, expenses and costs of the Seller whether or not external or internal, including travelling and packaging.
“Credit Application” means any application of the Customer for credit or extended payment terms.
“Credit Terms” means the credit terms of the Seller applicable to the Customer from time to time.
“Customer” means a person, firm or corporation that purchases Goods or Services from the Seller and/or is specified as the Customer in any Invoice. If Goods or Services are ordered by a Related Party of a Customer, then that Related Party shall be deemed to be the Customer in addition to the person specified as the Customer in any Invoice.
“Customary Arrangements” means the usual trading arrangements of the Seller applicable from time to time.
“Directors Guarantee” means a guarantee in such form as the Seller requires which unconditionally guarantees all of the obligations of the Customer properly executed by the directors of the Customer or such other persons as may reasonably be specified by the Seller.
“Event of Default” means a breach by the Customer or of a Guarantor of any obligation of the Customer or of a Guarantor to the Seller including of these Terms and anything stated to be an Event of Default and without limitation includes, a situation where:
an amount owing is not paid in accordance with these Terms and any other contract or arrangement between the Seller and the Customer
the Seller receives notice of or reasonably believes that:
a third person may attempt to levy execution against any Goods that have not been paid for and/or are subject to a Security Interest;
the Customer is insolvent (within the meaning of the Corporations Act) or bankrupt;
the Customer has entered into any arrangement or composition with its creditors, gone into liquidation, or has appointed a receiver, a receiver and manager or administrator.
“Further Security” means any security that the Seller requires under these Terms or the Credit Terms.
“Goods” means any goods sold or provided to the Customer by the Seller.
“GST” has the meaning given to it in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Guarantor” means any person who guarantees any obligation of the Customer to the Seller.
“Invoice” means any notification from the Seller to the Customer concerning the sale of Goods and Services and/or any other Transaction (which need not be in writing and may be by way of email) including any one or more or combination of a sale confirmation, invoice, account or similar document from the Seller to the Customer which may, but need not, show the amount owing by the Customer to the Seller.
“Jurisdiction” means the state or territory which is referred to in the address of the Seller in these Terms.
“Payment Terms” means the requirement to pay on making an order or before delivery or, where relevant, in accordance with any Credit Terms.
“Place of Delivery” means such place as is so specified by the Seller in an Invoice.
“PMSI” means a Purchase Money Security Interest under the Personal Property Securities Act 2009 (Cth) (PPSA).
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Price” means the price or amount payable for Goods and Services whether or not shown in any Invoice of the Seller.
“Related Party” means any company which is deemed to be a related party of the Customer under the Corporations Act.
“Security Interest” means any interest treated or recognized as being a security interest under the Personal Property Securities Act 2009 (Cth).
“Seller” means the party named in the heading to these Terms and includes each person or entity trading under that name and any successors of that person or entity.
“Services” includes any services provided by or through the Seller including delivery, packaging, installation, repair, servicing, maintenance or training.
Specific Provisions” means any additional terms or conditions of the Seller applicable to a sale or other Transaction by the Seller.
“Terms” means these General Terms and Conditions of Sale as amended or varied from time to time by the Seller.
“Transaction” means an order or sale by the Seller of Goods or Services or other dealing with the Customer.
Interpretation
Unless otherwise defined in these terms, capitalised terms and expressions used in the PPSA have the meanings given to them in the PPSA.
Headings to clauses are for convenience only and do not affect the interpretation of a clause. The singular includes the plural and vice versa. One gender includes all other genders. Where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
Operation of these Terms
These Terms together with any Specific Provisions, the Customary Arrangements and any Credit Terms apply to all Transactions between the Customer and the Seller, including without limitation, all quotations, offers, orders, or sales, returns or other dealings unless otherwise specifically provided and shall form part of the agreement in relation to each Transaction between the Customer and the Seller together with the specific terms of a Transaction that deal with matters in relation to the Transaction such as items purchased, price and so on.
These Terms (which will only be waived or varied in writing signed by the Seller) together with any Specific Provisions and the Credit Terms prevail and, to the extent of any inconsistency, take precedence over any discussions, dealings or arrangements of any nature whatsoever (whether verbal or written) between the Customer and Seller and form the entire agreement. The Seller may, at any time and from time to time, alter these Terms or the Credit Terms but not in respect of a concluded transaction. The Seller may not be required to conform to any administrative or other procedures of the Customer, but if it does any costs of doing so shall be a Charge and shall be payable by the Customer.
No modification or variation of any Term shall be binding unless it is made in writing and signed by the Seller and shall not be modified or varied by the acknowledgement, receipt or acceptance by Seller of a purchase order form or other document containing terms put forward by the Customer.
These Terms replace any existing documentation, except insofar as it applies to an existing completed or commenced and ongoing Transaction.
The Customer acknowledges receipt of these Terms including because of their availability on the Internet (if that is the case). Without limitation, if an account is opened, an order placed and/or an Invoice is issued, or if Goods are accepted by or on behalf of the Customer, then the Customer is deemed to have knowledge of these Terms and the Credit Terms and to have accepted them and to be bound by them.
In placing any order the Customer represents that it can pay for the Goods and Services ordered and that the person who places the order is authorised to do so and to bind the Customer.
Clerical errors in computations, typing or otherwise, including on any website or catalogue, quotation, acceptance, offer, Invoice, delivery advice, credit note or specifications shall be subject to correction by the Seller.
If the Customer is a trustee then the Customer must procure a Director’s Guarantee of all of the obligations of the Customer to the Seller where the Customer is extended credit or, if requested by the Seller, whether or not the Customer is extended credit.
Transaction, Price and Payment
Where the Customer orders any Goods or Services from the Seller whether on credit or not it shall be deemed to have agreed to purchase and pay for them for the Price and any Charges as advised by the Seller and where relevant as provided for in the relevant Invoice and on and subject to these Terms and any applicable Specific Provisions and to the extent relevant, in accordance with the Customary Arrangements and any Credit Terms.
The Price and Charges payable for all Goods and Services and any other Transaction shall be as set out in an Invoice or as advised by the Seller and are firm only for any time or circumstance indicated. All applicable taxes, duties or levies (including GST) on the sale of the Goods and Services and all Charges will be to the Customer’s account. If the cost of Goods or inputs rise, whether due to price rises or currency variations, delay by the customer or otherwise, then the Seller may increase any quoted Prices.
The Customer will pay the full Price and all Charges payable in respect of each Transaction to the Seller at the time required by the Seller without deduction and where credit is provided by the Seller within 30 days of the Transaction. Time for payment for Goods and Services shall be of the essence and will be as stated by the Seller. If no time is stated, then payment shall be on or before delivery of the Goods or performance of the Services.
Payment may be made by cash, cheque drawn on a bank in Australia in Australian currency, funds transfer or by Visa and MasterCard. If payment is by a credit card then a handling fee for effecting payment by this method will be charged. If a cheque is dishonoured, then a returned cheque fee will be payable. The Seller may apply all payments received in such manner as it determines.
Any quotation or price list does not constitute an offer to sell Goods or Services nor imply that they are readily available and the Seller may alter the same or may decline to sell Goods or provide Services without notice.
The Seller may subcontract or outsource any manufacturing or Services that it is engaged to perform.
Orders accepted by the Seller cannot be cancelled or countermanded but the Seller need not supply under an order including if there is an Event of Default or it considers that the Customer may be unable to pay.
Delivery may not be deferred nor Goods returned by the Customer except with the prior written consent of the Seller and upon terms that reimburse and indemnity the Seller against all loss including cartage, bank charges, and other incidental expenses on any part of the order that is cancelled. Where the Seller agrees to accept Goods for return, a re-stocking fee of 10% of the price of Goods will be charged.
The Customer warrants that all Goods purchased will be for use in a business and are not for personal, domestic or household use or consumption.
All sales are made on a supply only basis and any packaging or delivery and installation and commissioning or training and other Services are at the sole expense of the Customer unless otherwise specified in writing by the Seller.
Provision of Credit
Any credit provided to the Customer shall be on and subject to the Credit Terms which include that the Seller is entitled to a Security Interest. The Seller makes no representation that it will provide or keep available credit and at its discretion reserves the right to refuse the Customer any credit or to decline the provision of any further credit and to require that any outstanding indebtedness be paid in full or be subject to the provision of a Director’s Guarantee or acceptable security including the Further Security. If the Customer applies for credit this shall constitute a continuing representation that it is solvent and is entitled to apply for credit and is not subject to the provisions of any Consumer Credit legislation and that it waives any rights that it may have thereunder. If the Customer is a company then the Customer shall, if the Customer applies for credit and otherwise if the Seller requires it, procure that each of its directors or such other persons as may reasonably be specified by the Seller execute a Director’s Guarantee in terms provided by the Seller under which they unconditionally guarantee all of the obligations of the Customer.
The Seller may charge interest at the rate of 1.5% per month or part thereof on any moneys due but not paid on or before the date due, in which case interest shall be payable from the date of the Transaction whether or not the Seller has agreed to provide credit. Interest shall accrue and be calculated on a daily basis until the date on which payment is received in full by the Seller. If there is a discount and moneys due are not paid by the due date, then there shall be no entitlement to the discount and the full price will be payable.
The Seller may impose a Charge of 1% of the credit limit amount of the Customer for the resulting administration.
The Customer must inform the Seller in writing within 7 days of any change to their business or corporate structure including a change in ownership.
The Seller may, at its option and without prejudice to any of its other rights, either suspend further deliveries, require payment in advance or terminate any contract by notice to the Customer where the Customer (or where relevant a Guarantor) commits or in the opinion of the Seller may be likely to commit an Event of Default.
The Seller may set-off any credit amount that it owes to the Customer or the monetary value of any claim it has against any debit due by the Customer to it. The Customer is not entitled to withhold payment of any money in respect of any set-off or claim that it may have against the Seller.
A statement by the Seller of the amount owing to it by the Customer as at a particular date shall in the absence of manifest error be conclusive evidence of the amount owing to the Seller by the Customer.
Risk, Delivery and Acceptance of Good
Risk in each order will pass to the Customer upon commencement of delivery of that order or any part of it to the Customer or upon collection of that order by the Customer or its agent or courier as the case may be.
Where Goods are delivered to a particular site, the Goods will be entirely at the Customer’s risk as and from the time they leave the Seller’s premises. If the site is unattended by the Customer, the delivery docket/manifest signed by the delivery person shall be conclusive evidence of due delivery of the Goods and there shall be a deemed acceptance on the part of the Customer if the Goods are not rejected within 48 hours of delivery. No receipting by the Customer is required on delivery, nor shall the Seller be required to arrange insurance and a Customer must do so.
While the Seller will endeavour to meet firm nominated delivery dates, any delay of delivery, for any reason whatsoever, will not entitle the Customer to claim for any consequential loss or damage or to cancel, rescind or terminate a sale. Delivery dates are not to be treated as an essential condition of a sale. For as long as delay circumstances exist, the Seller may, at its option, cancel, rescind or terminate all or any part of the sale or keep the sale on foot until such circumstances have ceased. Such circumstances beyond the control of the Seller include, but are not limited to: strikes, lockouts, rebellions; fire; acts of God; shortages of raw materials; Government decrees, proclamations or orders; transport difficulties; and failures or malfunctions of computers or other information technology systems.
The Seller reserves the right to deliver in installments and all such installments shall be paid for without regard to the delivery of subsequent installments. A part delivery of an order shall not invalidate the balance of the order. The Seller reserves the right to over-supply or under-supply any order within reasonable limits. The Customer will pay for any such over-supply at the unit price for the delivered Goods.
The Customer must inspect the Goods immediately upon delivery or collection. All claims against the Seller regarding the quantity, quality, nature, fitness, suitability, conformance with description or defects of the Goods must be made in writing to the Seller within 7 days of delivery. No claim may be made against the Seller unless it is made in accordance with these Terms.
Where the Customer fails to accept a delivery this will be deemed to be an Event of Default.
If the Customer does not accept delivery or the Seller agrees to postpone delivery, the Goods in question shall be stored at Customer’s risk and the Seller reserves the right to impose a weekly storage Charge. Where delivery is postponed for more than 1 month the Seller may increase any fixed Prices. The Seller may at its discretion sell any Goods still in its possession after three (3) months and shall be indemnified for any loss incurred by the Seller. Any property of the Customer under the Seller’s custody or control will be entirely at the Customer’s risk as regards loss or damage caused to the property or by it.
PPSA, Retention of Title, Security Interests and PMSI
The Customer acknowledges that each agreement of which these Terms forms a part constitutes a security agreement for the purposes of section 20 of the PPSA and that it grants to the Seller a security interest in relation thereto and that a security interest exists in all Goods (and their proceeds including any Accounts, Accessions and Commingled Goods) previously supplied by the Seller to the Customer (if any) and in all future goods (and their proceeds).The Customer will execute all such documents and do such further acts as may be required by the Seller to register the security interest granted to the Seller under these Terms under the PPSA and to take all other actions thereunder and hereunder as the Seller requires.
The Customer acknowledges and agrees that any purchase by it on credit from the Seller and any retention of title pursuant to these Terms, attaches on delivery or segregation of the relevant Goods and constitutes a Purchase Money Security Interest.
Notwithstanding delivery of the Goods to the Customer, until the Customer has made full payment for the Goods and any other Goods previously or subsequently supplied by the Seller:
Legal title to the Goods will remain with the Seller;
The risk in the Goods will pass to the Customer on delivery to the Customer or its agent;
The relationship between the Seller and the Customer will be fiduciary;
The Customer will:
hold the Goods as bailee for the Seller;
keep these Goods separate from other Goods; and
label the Goods so that they are identifiable as the Goods of the Seller;
The Customer is at liberty to sell the Goods but only in the ordinary course of the Customer’s business, provided that the money resulting from the sale or any insurance claim will: be held in a separate account in trust for the Seller (Proceeds Account), which it must maintain separate from its own moneys at all times and not overdraw and be mingled with other money or be placed into an overdrawn account;
The Customer will maintain proper records for the Proceeds Account;
In the event that the Customer consumes the Goods in some process then the Customer will hold such part of the proceeds of such process as relates to the Goods in trust for the Seller and place them in the Proceeds Account. Such part will be equal to the amount owing by the Customer to the Seller at the time of receipt of such proceeds;
The Customer must not assign or encumber any book debts arising from sales made or do any other acts in derogation of the Seller’s legal or beneficial interest;
The Seller may appropriate payments as it thinks fit, notwithstanding any contrary appropriation by the Customer;
For the purposes of identification of different consignments of Goods and Services purchased from the Seller and receipt of proceeds, the “Last In, First Out” rule shall be applied to any items that cannot be distinguished.
After the happening of an Event of Default, the Seller may without demand retake possession of the Goods and may without notice sell the Goods on such terms and in such manner as it determines and will be entitled to deduct all expenses incurred. For the purposes of recovering possession and without limiting the generality of the foregoing, the Customer irrevocably authorises and licenses the Seller and its servants and agents to enter any premises where any Goods may be stored and to take possession of the Goods. The Customer will ratify all actions taken by the Seller in the exercise of its powers hereunder and elsewhere in these Terms and will not act so as to prevent or hinder the Seller in such exercise.
The Customer agrees that:
it will do all the things necessary in the Seller’s reasonable opinion, including providing all information the Seller requires, to register a Financing Statement or Financing Change Statement on the Register as a Security Interest and/or a Purchase Money Security Interest; and pay all the Seller’s costs thereof and of any release by the Seller including an administration fee;
it will not change its name or ABN or other details required in respect of registration, or maintenance of registration, of each Security Interest on the Register without first notifying the Seller in writing;
it waives its right to receive a Verification Statement in respect of any Financing Statement or Financing Change Statement in respect of any Security Interest created pursuant to these Terms.
If the provisions of Chapter 4 of the PPSA would otherwise apply, to the maximum extent permitted by law, the Customer waives its rights under the following provisions of Chapter 4 of the PPSA: Sections 95, 117, 120, 121(4), 123, 125, 129, 130, 132(2), 132(4), 135(2), 137(2), 142, 143, 157(1) and 157(3).
Until title of the Goods passes, the Customer must not give to the Seller a written demand or allow any other person to give the Seller a written demand requiring the Seller to register a Financing Change Statement under the PPSA or enter into or allow any other person to enter into the register of personal property securities a Financing Change Statement under the PPSA.
In addition to any other rights under these Terms, the Seller may exercise any and all remedies set out in the PPSA including, without limitation, entry into any building or premises owned, occupied or used by the Customer, to search for and seize, dispose of or retain the Goods in respect to which the Seller has a Security Interest. In this regard, the Customer acknowledges that Sections 126, 128, and 129(1) of the PPSA relating to seizure of goods and disposal of seized goods apply. The Customer shall indemnify the Seller from any claims made by any third party as a result of such exercise.
The Customer agrees with the Seller that neither will disclose any confidential information of the kind referred to in Section 275(1) of the PPSA and that this clause constitutes a confidentiality agreement within the meaning of Section 275(6)(a) of the PPSA. The Customer waives any rights the Customer may have under Section 275(7)(c) of the PPSA to authorise disclosure of any confidential information that is protected from disclosure.
The Customer appoints and authorises the Seller as the Customer’s attorney to sign in the Customer’s name all documents which the Seller reasonably considers necessary to enforce or protect the Seller’s rights and powers under these Terms and to protect, preserve and enforce the Seller’s rights under the PPSA.
If the Customer is the owner of land, realty or any other asset capable of being charged, it shall on the request of the Seller mortgage and/or charge all of its joint and/or several interest in the said land, realty or any other asset to the Seller to secure all amounts and other monetary obligations payable under to the Seller and it shall be entitled to lodge, where appropriate, a caveat to secure its interest, which shall be withdrawn once all payments and other monetary obligations payable including the cost of preparation and registering the said caveat have been paid.
The Customer will release and hold harmless the Seller from any liability whatsoever in the event of any dispute it has to whether any interest registered under the PPSA constitutes a valid Security Interest and the Customer shall be responsible for all costs reasonably incurred by the Seller (including legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA
Use, Installation, Advice and Information
The Customer agrees to use the Goods in accordance with any directions or instructions displayed on or supplied with the Goods and shall read and familiarise itself with them. The Seller is not responsible for any loss or damage incurred or suffered by the Customer or by any other person as a result of any incorrect installation, misuse of the Goods or negligence. The Customer agrees to indemnify the Seller against any loss or damage which the Seller suffers or incurs if any claim or demand is made by any person against the Seller for any reason whatsoever.
Any advice, recommendation, information, assistance or service given by the Seller in relation to Goods sold or manufactured by the Seller or their use or application is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty of accuracy, appropriateness or reliability and the Seller does not accept any liability or responsibility for any loss suffered from the Customer’s reliance on such advice, recommendation, information, assistance or service.
In delivering Goods or performing any Services the Customer shall ensure that full and safe access and safe working conditions will at all times be given to the Seller and the Seller may decline to effect a delivery or perform any Services if in its opinion full and safe access and safe working conditions are not given and the Customer will bear all costs arising thereon.
Competition and Consumer Act 2010 (Cth)
All purchases are made by the Customer solely relying on its own skill and judgment.
Any complaints which the Customer may have regarding Goods supplied and/or including quality or amount failing to correspond with the Goods ordered shall be made by the Customer to the Seller in writing within 7 days of delivery, providing full details. If no written complaint is received by the Seller within that time, the Customer agrees that it shall not raise any complaint and shall be deemed to have accepted the goods delivered.
The Seller shall not be liable to the Customer or any other person or entity for any special, incidental, indirect or consequential damages, including, without limitation, lost profits, loss of time, money or goodwill, which may result from or arise under or out of any agrement with the Customer and any such liability which would otherwise arise is hereby expressly excluded except only to the extent that any such liability may not be excluded under any applicable law and then only the minimum liability shall be applicable. Without limitation, the Seller shall have no liability for any delay in the delivery or in the performance of any Goods.
Terms that exclude or limit the Seller’s liability will apply only to the extent permitted by law and any provisions of the Competition and Consumer Act 2010 (Cth) and other laws from time to time in force which cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent shall only be excluded, restricted or modified to the extent possible.
To the extent to which the Seller is entitled to do so, its liability limited at its option (but without there being an automatic thereto) to at its option:
the replacement of any Goods by the same Goods or by the supply of equivalent goods;
the repair of the Goods; or
refund of the costs of any Goods; or
reperformance of any Services or refund of their costs
Enforcement and Termination
If payment is not made on or before the due date then the Seller may without demand retake possession of the Goods and may without notice sell the Goods on such terms and in such manner as it may determine and will be entitled to deduct all expenses incurred. For the purpose of recovering possession, and without limiting the generality of the foregoing, the Customer hereby irrevocably authorises and licences the Seller and its servants and agents to enter upon any premises where any Goods may be stored and to take possession of the Goods.
The Seller can issue legal proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Good may not have passed.
Where the Seller may suspend, terminate or cancel the supply of Goods, doing so shall be without prejudice to the Seller’s right to recover payment from Customer for Goods and Services previously supplied and for any and all losses.
In the event that there is a breach of an obligation of the Customer and some, or all, of the costs incurred by the Seller are legal and/or other costs, those costs shall be reimbursed by the Customer to the Seller on a solicitor/client or collection agency/client basis and shall be recoverable from the Customer regardless of whether legal proceedings were issued by the Seller against the Customer or were defended.
Notwithstanding termination, any provision which is expressed to continue to apply after termination or which must by its nature continue to apply after termination to have full effect, will survive termination and will continue to apply after termination.
Termination shall be without prejudice to any other remedies that either party may have at law or equity in respect of any prior breach.
Any provision or part of these Terms which is deemed to be unenforceable shall be severable in whole or in part in such manner as determined by the Seller and shall not affect the remaining terms of the agreement or the portion of the particular Term from which the part has been severed.
The proper law of the agreement between the Seller and the customer shall be the law applicable in the Jurisdiction. The Customer agrees to submit to the non-exclusive jurisdiction of the Courts of the Jurisdiction.
Privacy
The Seller may obtain from a credit-reporting agency a credit report containing personal credit information about the Customers, its credit history and that of any Guarantor/s in relation to any credit which it may intend to provide. The Seller may exchange information and personal data with a credit reporting agency and in relation to any enforcement and to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer or any Guarantor.
Personal data may be used and retained for the following purposes and for other purposes as shall be agreed or as required by law from time to time:
provision of Services and Goods;
marketing of Services and/or Goods by the Seller and, its agents or suppliers in relation to the Services and Goods;
analysing, verifying and/or checking credit, payment and/or status in relation to the provision of Goods and Services;
processing of any payment instructions, direct debit facilities and/or credit facilities requested.