1.2 'Applicant' means the applicant named in section 1 of this application form.
1.3 'Application' means the application by the Applicant to open a credit account with the Company, set out in this application form.
1.4 'Account' means the credit account with the company the subject of this Application which the Company has opened (or may open) for the Applicant's use.
1.5 'Services' means any and all services provided (or to be provided) by the Company to the Applicant or to any third party authorised by the Applicant.
1.6 'Goods' means any and all goods provided (or to be provided) by the Company to the Applicant or to any third party authorised by the Applicant.
1.7 'Loss' means damage, loss, cost, expense or liability (whether actual or contingent).
2.1 These Terms and Conditions apply in every case where the Company provides goods or services of any kind to the Applicant placing the order or on whose behalf the order is placed, unless otherwise agreed in writing between the Company and the Applicant. Acceptance of Goods or Services by the Applicant is conclusive evidence before any court that these Terms and Conditions (as varied from time to time) apply and are binding on the Applicant.
2.2 The terms and conditions of any contract made pursuant to clause 5.1 prevail to the extent that they are inconsistent with these Terms and Conditions. Where no inconsistency arises, the provisions of these Terms and Conditions shall be taken to apply in addition to any terms and conditions expressed in the contract.
2.3 Subject to clause 2.2, these Terms and Conditions prevail to the extent that they are inconsistent with any trading terms or other communication by the Applicant to the Company.
3 Credit terms
3.1 For the purposes of considering whether to approve the Application and, upon approval of this Application, at any time during the existence and operation of the Account, the Applicant authorises the Company to make such enquiries as the Company may require to be satisfied as to the creditworthiness of the Applicant. Without limiting the effect of this clause, the Company may make such enquiries with any trade reference named by the Applicant, credit reporting agency or any other relevant third party. The Applicant agrees to provide signed written authorities addressed to the Applicant's banker, or other credit providers, as the Company requires from time to time.
3.2 The Company reserves the right to require the Applicant to spend a minimum dollar amount per year to obtain goods or services on credit (charged to the Account).
3.3 The Company may specify in writing to the Applicant the maximum (GST-inclusive) amount that may be charged to the Account over a particular period (Credit Limit). The Applicant's Credit Limit is subject to review at any time by the Company. The Company may, on request in writing by the Applicant, agree in writing to increase or decrease the Credit Limit. The balance of the Account at any one time must not exceed the Credit Limit. The Applicant agrees to immediately pay the amounts charged to the Account for any Goods or Services supplied by the Company in excess of the Credit Limit, whether or not demand for payment has been made by the Company.
3.4 The Applicant acknowledges and agrees that the Company may (at any time in its absolute discretion, without notice and without giving any reason) refuse credit to the Applicant and/or suspend or cancel the Account or any credit facilities granted by the Company to the Applicant. If the Company suspends or cancels the Account under this clause, the balance of the Account and any amounts owing to the Company but not then billed are immediately due and payable by the Applicant to the Company.
3.5 The Company is not responsible for any Loss whatsoever or howsoever caused which the Applicant may suffer as a result of the Company refusing to supply the Applicant with any Goods or Services on credit or cancelling or suspending any credit facility granted to the Applicant.
3.6 The Applicant is responsible for and agrees to indemnify the Company against any unauthorised use of the Account. The Applicant must notify the Company in writing of any unauthorised transactions on the Account immediately upon the Applicant becoming aware of them.
4 Terms of Payment
4.1 The Applicant must pay to the Company the whole amount of any debit balance shown on an invoice or statement issued by the Company to the Applicant (Amount Payable) no later than thirty (30) days from the date of issue of the invoice or statement, unless otherwise stated by the Company.
4.2 An Amount Payable by the Applicant under these Terms and Conditions must be paid in Australian Dollars and without deduction, retention or set-off of any kind and for any reason whatsoever.
4.3 If the Applicant makes any payment to the Company, then the Company may apply the payment to satisfy any obligation that the Applicant owes to the Company (whether the obligation is unsecured, secured by 'security interest', or secured by 'purchase money security interest'). Further, the Company may (a) apply or appropriate the payment in any order, in any manner, and at any time that it (in its absolute discretion) thinks fit, and (b) amend, re-apply or re-appropriate any application or appropriation.
4.4 Invoices and statements shall be posted to the Applicant at the address specified by the Applicant for that purpose in the Application (or such other address as the Applicant may notify the Company in writing from time to time). This shall be sufficient notice of the amount due under the Account.
4.5 Any complaint made by the Applicant that a transaction recorded on the Applicant's tax invoice is incorrect must be advised to the Company in writing within seven (7) days of the issue of the tax invoice. If this does not occur, the transactions recorded in the tax invoice shall be taken to be correct. If part of the amount in the tax invoice is in dispute, the Applicant agrees to pay the undisputed amount by its due date for payment.
4.6 Notwithstanding clause 4.5, the amount stated in a certificate signed by the Company's duly authorised representative or solicitor as being due and payable by the Applicant to the Company under these Terms and Conditions is prima facie evidence that such amount is owing.
4.7 Where the Applicant has defaulted in its payment obligations under these Terms and Conditions, any amounts owing by the Applicant to the Company in connection with the Account may be deducted by the Company from any fee payable by the Company to the Applicant under any other agreement, contract or arrangement. However, this clause does not in any way preclude or otherwise limit the rights of the Company to pursue legal recourse in the event of default by the Applicant.
5 Quotations, Orders and Contract
5.1 A written quotation issued by the Company to the Applicant is an offer to provide Goods and/or Services to the Applicant and will not create any contract for the supply of Goods and/or Services between the Company and the Applicant until the Applicant accepts the quotation by written communication to the Company or by its conduct in accepting delivery of the Goods or provision of the Services.
5.2 The Company may withdraw, revoke or vary a written quotation at any time prior to the Applicant accepting the quotation.
5.3 A written quotation expires on the date specified as the expiry date. If no expiry date is specified, the written quotation expires 30 days after the date of the written quotation.
5.4 The Company shall have the right to cancel any contract made pursuant to clause 5.1 including the cancellation of the supply of Goods and/or Services in respect of the same, at any time before the supply of the Goods and/or Services by giving written notice to the Applicant. On giving such notice, the Company shall repay to the Applicant any monies paid in respect of the contract. The Company shall not be liable for any Loss whatsoever arising from such cancellation.
6.1 The amount payable by the Applicant to the Customer for the supply of Goods and/or Services is at the Company's sole discretion and shall be either:
6.1.1 as indicated on invoices provided by the Company in respect of the supply of Goods and/or Services;
6.1.2 the Company's current price as at the date of supply according to the Company's current prices; or
6.1.3 the Company's quoted price provided that the Applicant accepts the Company's written quotation within thirty (30) days of the date on the written quotation.
6.2 Where in the period between acceptance of a written quotation and the supply of Goods and/or Services, the Company incurs an increase in the cost of supplying the Goods and/or Services, the Company reserves the right to (at any time prior to supply) increase the quoted price of those Goods and/or Services by the same amount by which the Company's costs increase (Price Escalation). The Applicant accepts any such Price Escalation.
6.3 The Company reserves the right to vary the price in the event of a variation to the written quotation.
6.4 The Company reserves the right to seek a non-refundable deposit from the Applicant, the terms of which to be stated in any written quotation issued by the Company to the Applicant.
7 Default and Consequences of Default
7.1 In the event that the Applicant fails to make any payment when due then (without prejudice to the Application of any other provision contained in these Terms and Conditions or to any other remedy provided for by these Terms or Conditions or otherwise):
7.1.1 the Applicant must (on demand) pay to the Company interest on the amount of the overdue payment calculated daily at the rate of fifteen percent (15%) per annum from the date payment was due until the date that it is paid in full; and
7.1.2 the Company may withhold the supply of Goods and/or Services and may (in addition but without limiting the preceding right) cancel all outstanding orders by the Applicant and retain any payments already made.
7.2 No cheque will be treated as payment if dishonoured despite the issue of a receipt. The Applicant will be responsible for any charge or fee issued to the Company for any cheques not met on presentation.
7.3 The Applicant unconditionally and irrevocably indemnifies the Company from and against all costs and disbursements (including, without limitation, legal and/or collection agency costs) incurred by the Company in pursuing any outstanding amount or amounts owing by the Applicant to the Company which have not been paid by their due date for payment.
7.4 Without prejudice to any other remedies the Company may have, if at any time the Applicant is in breach of any obligation (including those related to payment) which the Applicant owes to the Company, the Company may suspend any of its obligations under these Terms and Conditions. The Company is not liable to the Applicant for any Loss the Applicant suffers because the Company has exercised its rights under this clause.
7.5 Without prejudice to any other remedies which the Company may have at law or in equity, the Company shall be entitled to cancel all or any part of any order of the Applicant which remains unfulfilled and all amounts owing to the Company shall, whether or not due and payable, become immediately payable in the event that:
7.5.1 any money payable by the Applicant to the Company becomes overdue, or in the Company's opinion the Applicant will be unable to meet its payments as they fall due; or
7.5.2 the Applicant becomes bankrupt, insolvent, convenes a meeting with its creditors or proposes to or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
7.5.3 a receiver, manager, liquidator (provisional or otherwise), trustee in bankruptcy or similar person is appointed in respect of the Applicant or any asset of the Applicant.
8 Limitation of Liability
8.1 To the extent permitted by the law the liability of the Company whether in contract or in tort, in respect of all claims for loss, damage or injury in respect of any Goods and/or Services arising from a breach of any of the Company's contractual obligations, from any negligence or any act, matter or thing done or permitted to be done by the Company, its servants, agents and contractors shall not in the aggregate exceed the amount paid or payable by the Applicant to the Company for the Goods and/or Services.
8.2 To the extent permitted by law, the Company is not liable to the Applicant for any loss of profits or any consequential, indirect or special loss, damage or injury of any kind whatsoever suffered by the Applicant or its servants, agents and contractors in connection with any Goods and/or Services, and the Applicant acknowledges this express limit of liability and agrees to limit any claim accordingly.
8.3 To the extent permitted by law but except as otherwise provided in these Terms and Conditions, all express and implied warranties and guarantees in respect of the supply of any Goods and/or Services are hereby expressly excluded and the Company shall not be liable for loss or damage (including consequential loss or damage) of any kind arising in connection with the supply of any Goods and/or Services.
9 The Company's Warranty
9.1 The Applicant shall, within seven (7) days of the supply of any Goods and/or Services (time being of the essence), notify the Company of any alleged defect, error, omission, shortage in quantity, damage or failure to comply with the description or quotation. The Applicant shall afford the Company an opportunity to inspect the alleged defect, error, omission, shortage in quantity, damage or failure to comply within a reasonable time of receiving notification. If the Applicant fails to give notice in accordance with this clause, the Goods or Services shall be presumed to be free from any defect, error, omission, shortage in quantity, damage or failure to comply.
9.2 Goods will not be accepted for return other than in accordance with the provisions of this clause.
10.1 The Applicant indemnifies and holds harmless the Company, its employees and agents from and against any Loss including, but not limited to:
10.1.1 legal costs and expenses on a full indemnity basis;
10.1.2 Loss (including consequential loss) in relation to property;
10.1.3 Loss in respect of personal injury, disease, illness or death;
10.1.4 economic Loss; and
10.1.5 Loss in relation to the environment;
caused by a breach by the Applicant of these Terms and Conditions or any other contract between the Applicant and the Company, or any wilful, unlawful or negligent act or omission by the Applicant. The Company and its employees and agents shall not be held responsible for any Loss suffered by the Applicant (whether by disruption to the Applicant's normal business operation, defect in workmanship or any other reason whatsoever) in relation to the supply of Goods and/or Services by the Company if the loss is caused by or arises as a result of such breach, act or omission.
11 Rights in Relation to Goods
11.1 The Applicant and the Company agree that:
11.1.1 Property and ownership (including legal and equitable title) in all Goods sold or otherwise provided by the Company to the Applicant remains with the Company until all money which the Applicant (now or in future, actually or contingently) owes to the Company is paid in full;
11.1.2 Risk in the Goods shall pass to the Applicant at the time of delivery. The Applicant shall insure (and keep insured) all Goods on the following conditions until such time as property and ownership (including legal and equitable title) in the Goods passes to the Applicant:
188.8.131.52 The Goods shall be insured for their full insurable or replacement value (whichever is higher); and
184.108.40.206 The Goods shall be insured by an insurer licensed or authorized to conduct the business of insurance in the place where the Goods will be stored.
11.1.3 If the Applicant fails to pay for the Goods within the period of credit (if any) extended by the Company to the Applicant:
220.127.116.11 The Applicant shall deliver the Goods to the Company, where demanded by the Company or its Agent; or
18.104.22.168 The Company may recover possession of the Goods by any necessary means at any site owned, possessed or controlled by the Applicant;
22.214.171.124 The Applicant agrees that the Company has an irrevocable license to exercise its rights under this clause;
126.96.36.199 The Applicant shall be liable for all costs associated with the exercise of the Company's rights under this clause, and this liability shall be payable on demand.
11.2 The Company and the Applicant agree that, until property and ownership (including legal and equitable title) of the Goods has passed to the Applicant:
11.2.1 The Applicant will not supply any of the Goods to any third party outside of its ordinary or usual course of business;
11.2.2 The Applicant will not grant or register (or allow any person to have, acquire or register) any 'security interest' (within the meaning of the Personal Property Securities Act 2009 (PPSA)) in the Goods;
11.2.3 The Applicant will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Company;
11.2.4 The Applicant must not remove, deface or obliterate any identifying place, mark or number on any of the Goods;
11.2.5 Where the Applicant is in actual or constructive possession of the Goods:
188.8.131.52 The Applicant shall hold the Goods as fiduciary bailee and agent for the seller;
184.108.40.206 After giving 48 hours notice to the Applicant, the Company shall be entitled to enter upon the Applicant's premises between 9am and 5pm to inspect the Goods;
220.127.116.11 The Applicant will not deliver the Goods, or any document of title to the Goods, to any person except as directed by the Company;
18.104.22.168 The Applicant shall store the Goods separately and in a manner that enables the Goods to be identified and cross-referenced to particular invoices issued to the Applicant by the Company; and
22.214.171.124 Without limiting the effect of Division 2 of Part 2.4 of the PPSA (Proceeds and Transfer) or any other provision of the PPSA, the proceeds of any Goods sold shall be kept in a separate account and shall not be mixed with any other moneys, including funds of the Applicant.
11.2.6 Without limiting the effect of Part 3.3 (Accessions) or Part 3.4 (Processed or Comingled Goods) of the PPSA, the Applicant acknowledges that if it should mix the Goods with other products or items such that the Goods are no longer separately identifiable, then the Applicant and the Company shall be owners in common of the new product;
11.2.7 The Applicant has no right to claim any interest in the Goods to secure any liquidated debt or obligation the Company owes to the Applicant; and
11.2.8 The Applicant cannot claim any lien over the Goods.
12 The Applicant's Warranty
12.1 The Applicant warrants, represents, guarantees and acknowledges to the Company that:
12.1.1 All statements made and documents provided in connection with the Application and all representations that the Applicant has made or may make during the existence and operation of the Account to the Company are true and correct; and
12.1.2 The Account is required for the Applicant's business or commercial purposes and will not be used for personal, domestic or household purposes.
13 Company's enforcement costs
13.1 The Applicant must pay to the Company any amounts reasonably incurred or expended by the Company in exercising its rights under or in respect of these Terms and Conditions as a result of any default by the Applicant under these Terms and Conditions or as a result of any of the following circumstances:
13.1.1 The Company being induced by fraudulent misrepresentation on the Applicant's part to approve the Application; or
13.1.2 The amount charged to the Applicant's Account exceeding the Credit Limit at any time without the prior written approval of the Company; or
13.1.3 Any amount charged to the Account being due and unpaid (amounts disputed in accordance with clause 4.5 are not considered due until the dispute is rectified); or
13.1.4 any change of circumstances, including, without limitation, changes in the Applicant's constitution, ownership, membership, control status or ability to provide security for payments of amounts which have been or are likely to be charged to the Account, making the continued operation of the Account undesirable or unsatisfactory (in the Company's opinion); or
13.1.5 The Applicant:
126.96.36.199 Being a company, becoming, threaten or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; or
188.8.131.52 Being a partnership, dissolving, threatening or resolving to dissolve or being in jeopardy of dissolving; or 184.108.40.206 The Applicant being a natural person, dying; or
13.1.6 The Applicant ceasing or threatening to cease conducting business in the normal manner; or
13.1.7 The Applicant using the Account for any non-commercial purposes including, without limitation, for personal, domestic or household purposes; or
13.1.8 The Applicant is otherwise being in default of their obligations under these Terms and Conditions or any contract made thereunder.
14.1 Notice served pursuant to these Terms and Conditions or any contract made thereunder may be delivered by post, or by facsimile to:
14.1.1 In the case of the Applicant, at the postal or facsimile address provided in the Application or notified in writing by the Applicant to the Company in accordance with this clause 14; or 14.1.2 In the case of the Company, at its office as listed at the top of this Application.
14.2 Notice is taken to be given:
14.2.1 In the case of ordinary post, the second business day after the day of posting; or
14.2.2 In the case of facsimile, the business day following the date of transmission provided that the sender has received confirmation receipt.
15.1 The Applicant must not dispose of, assign, license, encumber or otherwise deal with its interest in or rights and obligations under these Terms and Conditions or any contract made hereunder without the express prior written consent of the Company which it may withhold in its absolute discretion.
16 Personal Property Securities Act 2009 (Cth) (PPSA)
16.1 The Applicant hereby acknowledges that these Terms and Conditions constitute a security agreement which creates a 'purchase money security interest' in favour of the Company in respect of the Goods.
16.2 The Applicant acknowledges and agrees that by assenting to these Terms and Conditions the Applicant grants a security interest (including, without limitation, by virtue of clause 11.1.1 of these Terms and Conditions) to the Company.
16.3 The Applicant undertakes to:
16.3.1 Sign any further documents and provide any further information (which information the Applicant warrants to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (PPSR) in respect of any security interest granted by the Applicant to the Company (Security Interest);
16.3.2 do all other things that the Company at any time reasonably requires or considers necessary or desirable to (with respect to any Security Interest), ensure the security interest is enforceable and perfected or enable the enforcement of the security interest by the Company;
16.3.3 Not register a financing statement or financing change statement , or make a demand to alter any financing statement pursuant to section 178 of the PPSA, in respect of the Goods without the prior consent of the Company;
16.3.4 Pay all costs incurred by the Company in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce any security interest created by these Terms and Conditions including executing subordination agreements;
16.3.5 Be responsible for the full costs incurred by the Company (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA; and
16.4 To the full extent permitted by the PPSA and by law, the following apply with respect to each and every security interest granted by the Applicant to the Company:
16.4.1 PPSA sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 are excluded and contracted out of;
16.4.2 the Applicant waives all rights under the PPSA to receive any notice (including the right to notice of a 'verification statement' pursuant to PPSA section 157); and
16.4.3 the Company need not give to the Applicant any notice required under the PPSA.
16.5 The Applicant agrees that immediately on request by the Company the Applicant will procure from any persons considered by the Company to be relevant to its security position such agreement and waivers as the Company may at any time require.
17.1 Upon acceptance of these Terms and Conditions by the Applicant, these Terms and Conditions become binding and, subject to clause 18, can only be amended with the written consent of the Company.
17.2 The Applicant shall give to the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Applicant or any change to the Applicant's constitution, membership, control status, or the Applicant's name and/or any other change in the Applicant's details including, but not limited to, changes in the Applicant's address, facsimile number or business practice. The Applicant shall be liable for any loss incurred by the Company as a result of the Applicant's failure to comply with this clause.
17.3 If any provision of these Terms and Conditions or their application to any person or circumstance is or becomes invalid or unenforceable, that provision will be taken to be omitted without invalidating or modifying the remaining provisions of these Terms and Conditions which will continue in full force and effect as if the invalid or unenforceable provision had not been included in them.
17.4 These Terms and Conditions and any contract to which they apply shall be governed by the laws of Western Australia and the Applicant irrevocably submits to the non-exclusive jurisdiction of the that jurisdiction.
17.5 The Company shall be under no liability whatsoever to the Applicant for any indirect and/or consequential Loss and/or expense (including loss of profit) suffered by the Applicant arising out of a breach by the Company of these Terms and Conditions.
17.6 The Applicant shall not be entitled to set off against, or deduct from amount payable, any sums owed or claimed to be owned to the Applicant by the Company nor to withhold payment of any invoice because part of that invoice is in dispute.
17.7 The Company may license or sub-contract all or any part of its rights or obligations arising under these Terms and Conditions without the Applicant's consent.
17.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
17.9 The failure of the Company to enforce any provision of these Terms or Conditions or any provision of any contract made thereunder shall not be treated as a waiver of that provision, nor shall it affect the Company's right to subsequently enforce that provision.
18.1 The Company may vary these Terms and Conditions from time to time.
18.2 The Company may give notice of any variation of these Terms and Conditions on its website and may (but is not obliged to) notify the Applicant that it has varied these Terms and Conditions in an invoice, statement or other written communication by the Company to the Applicant.
18.3 If the Applicant continues to deal with and place orders for the supply of Goods with the Company after any such notification to the Applicant, the Applicant is taken to have agreed to those Terms and Conditions and to have taken supply of Goods on those varied Terms and Conditions.
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