TERMS AND CONDITIONS
- All accounts are due and payable within thirty (30) days of the date of the Company’s invoice or as arranged and confirmed in writing by the Company. Disputes and/or claims do not constitute grounds for non-payment of amounts other than those in dispute.
- The Applicant agrees that the Applicant is not entitled to use the Facility until it receives notice in writing from the Company stating that the Facility has been granted. Until the Applicant receives such notice in writing from the Company, any Goods that are supplied by the Company to the Applicant shall be on a cash basis.
- (a) Unless the Company agrees in writing to the postponement of payment of any monies owing to the Company by the Applicant, interest shall be payable by the Applicant to the Company on the highest debit balance of each calendar month on monies owing by the Applicant to the Company, calculated daily from the date the monies became due until the actual date of payment at a rate of 14% per annum. (b) Payments received by the Company will be applied as follows:
- Firstly, in reduction of interest payable and accruing from month to month; and
- Secondly, in reduction of all other monies owing to the Company until such time as all monies owing to the Company have been paid in full.
- The Company may withdraw the Facility at any time without notice, or the Company may from time to time, or at any time increase or decrease the limit (if any) of the Facility provided, without notice to the Applicant or the Guarantor.
- The Goods are at the Applicant’s risk from the time the Goods leave the premises of the Company for delivery to the Applicant.
- TITLE TO GOODS
6.1 The Company shall:
- remain the sole and absolute owner of the Goods until the price for the Goods has been received in full by the
Company from the Applicant;
- remain the sole and absolute owner of the Goods until the price for all other Goods supplied by the Company
has been received in full by the Company from the Applicant; and
- be entitled in addition to the right conferred by paragraph 6.2(b) of this paragraph 6, to retake possession of all
Goods in the possession of the Applicant which have been supplied by the Company sufficient to clear any outstanding indebtedness by the Applicant to the Company under the terms of this Agreement and the Company shall not be required to distinguish between Goods which have been paid for and Goods which have not been paid for.
6.2 Until the Company has received the price of the Goods and all other Goods supplied by the Company in full:
- The Applicant shall be bailee of the Goods for the Company and shall store them upon its premises separately from its own Goods or those of any other person and shall store them in a manner enabling them to be readily identifiable as Goods of the Company;
- The Company and its agents shall have the right at any time to enter the Applicant’s premises where the Goods
are stored and retrieve the Goods; and
- The Applicant shall not sell or dispose of any of the Goods or any interest in the Goods without the prior written consent of the Company.
6.3 If the Company consents in writing to the sale or disposal or if any sale or disposal is made in breach of paragraph 6.2 and
notwithstanding such breach:
- The Applicant shall inform any person to whom it proposes to sell or dispose of the Goods or any interest in the Goods (“the Acquirer”) of the Company’s interest;
- Any sale or disposal shall be made as agent (including as agent exceeding its authority, where appropriate) of the Company;
- The Applicant shall ensure that the terms of the sale or disposal to the Acquirer includes a term which is identical to this paragraph 6 except that references to the Company shall be references to Inter Steel Pty Ltd and references to the Applicant shall be references to the Acquirer;
- Notwithstanding that the payment of the price for the Goods would not otherwise have been due by the Applicant, the Applicant shall be immediately obliged to pay the price for the Goods to the Company immediately it receives payment from the Acquirer;
- The Applicant shall hold all its rights against the Acquirer and any proceeds it receives in trust for the Company;
- The Applicant agrees that the Company shall be entitled to trace all and any proceeds arising from any sale or disposal of the Goods until the Applicant pays the full price for the Goods to the Company;
- The Applicant agrees that the Company shall be entitled to trace all and any proceeds arising from any sale or disposal of the Goods until the Applicant pays the full price to the Company for all other Goods supplied by the Company;
- The Applicant shall at the Company’s request assign its claims against the Acquirer and agrees irrevocably to appoint the Company and each of its officers as its attorney to give effect to and complete that assignment;
- The Applicant must obtain, register and perfect a purchase money security interest from the Transferee in respect of the Goods, to the extent that the Acquirer does not pay for the Goods in fulI at the time of sale or transfer; and
- The Applicant agrees that despite anything in in this clause or otherwise, the Company’s security interest in the Goods attaches to the proceeds (as that term is defined in the PPSA) arising from any transfer of the Goods or any other dealing with them (including that which was expressly or impliedly authorised by the Company).
6.4 Until the price for the Goods has been received by the Company in full from the Applicant, the Applicant shall act at all times in a fiduciary capacity of the utmost good faith towards the Company.
6.5 Until the price for all other Goods supplied by the Company has been received by the Company in full from the Applicant, the Applicant shall act at all times in a fiduciary capacity of the utmost good faith towards the Company. Where:
- The Applicant makes a new object from the Goods, whether finished or not;
- The Applicant mixes the Goods with other articles; or
- The Goods become part of the other product, the Applicant agrees with the Company –
- That the ownership of the new object or the other Goods immediately passes to the Company; and
- Until payment of all sums owing to the Company whether under this or any other contract that the Applicant shall hold them as a fiduciary for the Company.
6.7 For the purposes of removing doubt, the ownership of the new object or other Goods passes to the Company at the beginning of the single operation or event by which the product is converted into a new object, is mixed or becomes part of other Goods (“the New Goods”).
6.8 Where the Company has not been paid in the manner required by these terms, the Applicant agrees with the Company to keep the New Goods as a fiduciary for the Company and, unless otherwise required by the Company, to store the New Goods in a manner that clearly shows the ownership of the Company.
6.9 In the event of any part (including in that expression subclauses, phrases and individual words thereof) of this paragraph 6 being or becoming void or unenforceable (whether by reason of width of expression, non-registration under any relevant legislation, lack of notice to any relevant person or for any other reason whatsoever) that part shall be severed from this paragraph 6 and the validity and enforceability of all other parts of this paragraph 6 shall in no way be affected thereby.
- Personal Property Securities Act
7.1 The PPSA applies to these Terms and Conditions except where excluded thereby or by a term of the Terms and Conditions
and the Applicant affirms that the Goods are inventory and acknowledges that the Company may register a purchase
money security interest in respect of the Goods and exercise its rights under the PPSA. The Company’s rights under
clause 6 are in addition to and not limitation of the Company’s rights under the PPSA.
7.2 The Applicant shall sign further documents and do further things necessary to perfect and protect the Company’s rights
under the PPSA.
7.3 The parties agree to exclude the operation of sections. 95, 121(4), 130, 132(3)(d), 132(4), 135 and 143 of the PPSA. The
Applicant waives its right under s.157 of the PPSA to receive notice of any verification of any registration and any other
right in favour of the Applicant that can be lawfully contracted out of under the PPSA (including but not limited to the
provisions listed in section 115)
7.4 Words and phrases defined in the PPSA have the same meaning in these Terms and Conditions.
- Any costs and expenses whatsoever incurred by the Company in respect of this Application, this Agreement, guarantees, securities or other documentation required by the Company in consequence of this Application and in particular any expenses incurred in respect of opening and maintaining any account in the name of the Applicant together with any collection costs, dishonoured cheques, fees and legal costs on a solicitor/client basis, shall be paid by the Applicant to the Company on demand.
- If the Applicant:
- Defaults in the due and punctual observance of all or any of the Applicant’s obligations under any contract arising out of
this Application; or
(b) Being a person, dies, commits an act of bankruptcy; or
- Being a company, takes or shall have taken against it any action for its winding up, receivership or voluntary administration, then the Company without prejudice to any rights or remedies open to it may:-
- Treat as discharged all or any obligation arising from any agreement with the Applicant;
- Retain any security given or monies paid by the Applicant or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum which may be lawfully recovered from the Applicant;
- Reserve the right to enter upon the Applicant’s premises or elsewhere to take possession of and remove any Goods for which full payment has not been received. The legal and equitable interest and title in the said Goods shall therefore not pass until full payment has been received by the Company;
- Take such steps as it may deem necessary to mitigate the damages suffered including the putting to use, hiring out, sale or disposal of any Goods supplied or to be supplied under the contract and in its possession.
- Should there be any variation to any of the information supplied by the Applicant in this Application or in the structure of the Applicant’s business (such as a conversion to or from a company or trust), then such variation shall forthwith be notified in writing by the Applicant to the Company. Unless notification of such variation or change is given and accepted in writing by the Company, the original Applicant and those persons who signed as guarantors on this Application shall remain liable to the Company as though any Goods or Services supplied by the Company were supplied to the original Applicant.
- The Company shall not be deemed to have waived any of the terms or conditions of this Application or agreed to any variation thereof unless it has done so expressly in writing and signed by the Company.
- Where there is any inconsistency between the terms and conditions of this Application and any subsequent agreement for the supply of Goods, work or materials by the Company, any such subsequent agreement shall be read down to the extent necessary to give full force and effect to the terms and conditions of this Application.
- Where the Applicant is a Trustee:-
- The Applicant agrees to produce a stamped copy of the Trust Deed (with all amendments) (“the Trust”) if and when requested by the Company;
- The Applicant warrants that it has full power and authority for the benefit, purposes and objects of the Trust to make this Application on behalf of the Trust and that it shall be bound by the terms of this Application both personally and as Trustee;
- The Applicant confirms that the Trustee of the Trust shall be liable for the invoice rendered by the Company and that in addition the assets of the Trust shall be available to meet payment of the invoice rendered by the Company.
Each of the Applicant and the Guarantor hereby charge all land owned or in the future acquired by each of the Applicant
and the Guarantor to secure payment of all monies which are or may become owing to the Company under this Agreement and each of the Applicant and the Guarantor:
- Consent to an absolute caveat being registered by the Company at any time in respect of such land to protect its charge; and
- Must enter into a mortgage in respect of such land immediately upon request of the Company, such mortgage containing standard clauses prepared by the Company’s solicitors, a copy of which is available for inspection at the Company’s offices, situated at 9 Ilda Road, Canning Vale.
- As a separate independent agreement, each Guarantor shall hold the Company fully indemnified against all loss or damages suffered as a result of any monies not being recoverable from the Guarantor/s as Guarantor/s by reason of any legal limitation or any other fact or circumstances which are known to the Company or not.
- Each of the Applicant and the Guarantor agree the certificate of the Company or any person authorised by the Company to give the same shall be conclusive evidence as to the amount owing to the Company by the Applicant and the Guarantor.
17.1 The Company is not under any circumstances liable to the Applicant for any economic or consequential loss, damage or other expenses whatsoever suffered by the Applicant arising out of or in consequence of any fault or defect in the Goods and/or Services (whether or not such fault or defect was caused by the negligence of the Company) except as stated in clause 17.4
17.2 To the extent that they are capable of being excluded, any warranties or guarantees established by legislation or common law or equity and deemed to form part of this Agreement are hereby excluded.
17.3 The Conditions shall be read in conjunction with the terms and conditions of any invoice, statement or other document provided to the Applicant by the Company upon the delivery of the Goods or in providing the Service, and in the case of a conflict of interpretation, the Conditions prevail.
17.4 If the Company is found to be in breach of a Contract the Companies liability is strictly limited to the cost of replacement
or repair of the defective goods or repayment (or allowance) of the invoice price of the defective Goods at the option of the
Company as soon as reasonably practical. The Companies liability does not extend beyond the defective Goods to any
other part of the order or to any indirect or consequential loss or damage resulting from or caused by in any way by the
Goods what so ever.
- QUOTATIONS, ORDERS AND CONTRACT
18.1 A written quotation issued by the Company to the Applicant is an offer to sell and overrides the Company’s prevailing price list. A written quotation expires on the date specified as an expiry date. If no expiry date is specified, the written quotation expires 30 days after the date of the written quotation.
18.2 The Company may withdraw, revoke or vary a written quotation at any time prior to the Applicant submitting an order which accepts the offer to sell comprised by the written quotation.
18.3 A contract for the supply of Goods is made when the Applicant communicates (by writing or conduct) to the Company its acceptance of a written quotation.
18.4 An order from the Applicant on terms which are inconsistent with the terms of a written quotation is an offer by the Applicant to buy Goods from the Company. A contract for the supply of Goods is made if the Company communicates in writing that it is prepared to supply the ordered Goods only on the terms of these Conditions and the Applicant accepts delivery of the ordered Goods in which case the contract is deemed to have been made as at the date of the Applicant’s order.
18.5 A contract made pursuant to clauses 18.3 or 18.4 is wholly documented by any specific terms agreed by the Company and the Applicant in writing including, without limitation, in a quotation and these Conditions. To the extent that any inconsistency arises between the terms of a quotation and any clause of these Conditions, the terms of these Conditions prevail to the extent of the inconsistency.
18.6 Where in the period between acceptance of a quote and delivery of the relevant Goods, the Company incurs an increase in the cost of producing and/or delivering the Goods, the Company reserves the right to increase the quoted price of those Goods at any time prior to delivery (a “price escalation”). The Applicant shall accept any such price escalation.
18.7 The provisions of these Conditions prevail over any terms and conditions of trade of the Applicant whether or not any
- INDEPENDENT LEGAL AND FINANCIAL ADVICE
Each of the Applicant and the Guarantor acknowledge:
- That they have entered into this Deed freely and willingly; and
- That they have had full and ample opportunity prior to the execution of this Deed to obtain independent legal advice and independent financial advice as to the extent and implications of this Deed and each of the Applicant and the Guarantor execute this Deed accordingly.
It is solely the Applicant’s responsibility to ensure that all Goods supplied under any invoice are insured to their full value in the name of the Applicant, from the time of delivery of the Goods with a reputable insurance company until those Goods are either sold or paid for in full.
- If any of the Conditions is or becomes for any reason wholly or partly invalid, that Condition is to the extent of the invalidity severed without prejudice to the continuing force and validity of the remainder of those Conditions.
- Each of the Applicant and the Guarantor shall not be entitled to make any deduction from amounts owing to the Company in respect of any alleged set off or counter claim.
- Each of the Applicant and the Guarantor must not assign or transfer any of their rights or obligations in connection herewith to any other person whatsoever.
- If the Application is made by more than one Applicant, each Applicant is jointly and severally liable under this Agreement.
- Each of the Applicant and the Guarantor shall pay all duties, fees and expenses associated with the Application and the Agreement including, but not limited to, the registration of any caveats, withdrawal of caveats, mortgages, discharge of mortgages and stamp duty.
- GOVERNING LAW
This Application and this Agreement are governed and construed in accordance with the laws of Western Australia and each of the
Applicant and the Guarantor agree to submit to the exclusive jurisdiction of the Courts of Western Australia.
In these Conditions and this Application:
“Agreement” means the agreement constituted by the acceptance of this Application by the Company.
“Applicant” means the party or parties defined as the Applicant in the Application.
”Company” means Inter Steel Pty Ltd ACN 110 893 340.
“Conditions” means these terms and conditions.
“Goods” means goods ordered by the Applicant from the Company pursuant to this Agreement.
“PPSA” means the Personal Property Securities Act 2009 (Cth)
“Services” means services ordered by the Applicant from the Company pursuant to this Agreement.