TERMS AND CONDITIONS

  1. 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.
  2. 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.
  3. (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:
  1. 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.
  2. The Goods are at the Applicant’s risk from the time the Goods leave the premises of the Company for delivery to the Applicant.
  3. TITLE TO GOODS

6.1           The Company shall:

Company from the Applicant;

has been received in full by the Company from the Applicant; and

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:

are stored and retrieve the Goods; and

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:

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:

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.

  1. 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.

  1. 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.
  2. If the Applicant:

this Application; or

(b)           Being a person, dies, commits an act of bankruptcy; or

  1. 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.
  2. 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.
  3. 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.
  4. Where the Applicant is a Trustee:-
  1. CHARGE

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:

  1. 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.
  2. 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.
  3. EXCLUSION

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.

  1. 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

inconsistency arises.

  1. INDEPENDENT LEGAL AND FINANCIAL ADVICE

Each of the Applicant and the Guarantor acknowledge:

  1. INSURANCE

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.

  1. 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.
  2. 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.
  3. 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.
  4. If the Application is made by more than one Applicant, each Applicant is jointly and severally liable under this Agreement.
  5. 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.
  6. 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.

  1. DEFINITIONS

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.

 

 

 

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