In these Terms, unless the context otherwise requires:
“Business Day” means a day other than a Saturday, Sunday or public holiday or bank holiday in the state of Victoria, Australia;
“entity” has the meaning given by section 9 of the Corporations Act 2001 (Cth).
“Default” means a breach by the Purchaser of these Terms, or the occurrence of an Insolvency Event.
“GST” has the meaning given by the GST Act together with any related interest, fines, penalty or other charge;
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Insolvency Event” means, except for the purposes of a solvent reorganisation of the Purchaser with the prior written approval of the Company, the occurrence of any of the following circumstances in relation to the Purchaser:
“the Company” means Industrial Organics Pty Ltd (ACN 116 786 415), 7/12 Viewtech Place, Rowville Victoria, 3178;
“PPSA” means the Personal Property Securities Act 2009 (Cth)
“PMSI” means a purchase money security interest as defined by the PPSA and “security Interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled”, and all related terms have the definition contained within section 12 of the PPSA;
“Purchaser” is the purchaser of products and services from the Company, and includes any successor or assignee of the Purchaser. If the Purchaser constitutes more than one entity, the Terms apply to each entity jointly and severally.
a. The Purchaser will not affect any change to its structure, ownership or directorship of the Purchaser without the express written agreement of the Company.
b. These Terms constitute the entire agreement between the Purchaser and the Company in relation to the supply of Products by the Company to the Purchaser.
c. The Company agrees to sell to the Purchaser and the Purchaser agrees to buy from the Company subject to these Terms, notwithstanding anything stated or represented by the Purchaser by way of enquiry or order.
d. No variation of, or alteration to, these Terms shall bind the Company unless otherwise agreed by the Company in writing.
e. If any provision of these Terms is unenforceable for any reason, the balance of the Terms shall nevertheless remain binding and enforceable.
f. The Company may set off any amount that the Company owes the Purchaser against any amount owed by the Purchaser to the Company, whether or not the amount is due and payable.
g. This document serves as notice that without further notice, these Terms (as amended or replaced by the Company from time to time) applies to all future supplies of Products to the Purchaser, or to a third party of the Purchaser’s behalf, whether or not a copy of the Terms is delivered during the course of the transaction.
h. Unless proven incorrect, a written statement by a director of the Company that an amount is due and payable to the Company by the Purchaser, or that the Products have been delivered by the Company to the Purchaser, shall serve as evidence of the facts stated.
3. Payment and Interest
a. The Purchaser shall pay the Company the amount invoiced the terms specified in the invoice (or in any other case, within 30 days of the date of statement), free from any set off, amendment or counterclaim.
b. The Purchaser agrees to pay interest on any overdue amounts at a rate of 4 percent above the rate prescribed by the Penalty Interest Rates Act 1983 (Vic), calculated daily, compounding until payment is received in full as cleared funds.
c. Unless it is otherwise expressly stated to be inclusive of GST, the price of products excludes GST.
d. Despite section 14(6) of the PPSA, the Company is entitled, and will apply payments received from the Purchaser at the sole discretion of the Company.
4. Risk and Title
a. Title in the products shall not pass from the Company to the Purchaser until the Company receives payment in full as cleared funds.
b. From the time of delivery of the products by the Company until the time the Company receives payment in full as cleared funds, the Purchaser shall hold possession of the products as bailee for the Company only, and is obliged to at its own expense keep the products insured for their full value for the duration of its term as bailee.
c. The Purchaser shall store the products belonging to the Company separately from other items in its possession, protect the products from damage, and identify the products as belonging to the Company.
a. Quotations shall not be deemed an offer to sell, and will remain valid for the period specified by the Company in writing, calculated by reference to the date of quotation, unless stated otherwise by the Company in writing.
b. Any order, or offer to purchase is not accepted until the Company advises its acceptance in writing, until which time estimates and quotations provided by the Company are subject to change and are not binding.
c. No cancellation of, or suspension of, any part of an order will be binding on the Company unless and until a duly authorised officer of the Company advises the Purchaser in writing of the Company’s acceptance.
d. In the event that the Company agrees to suspend or cancel an order, the Company may, in its sole discretion, demand from the Purchaser payment of a sum of compensation, or may seize deposit monies paid by the Purchaser.
a. The Purchaser acknowledges that these Terms constitute a security agreement for the purposes of the PPSA, creating a security interest with the Company as secured party and the products supplied by the Company forming the collateral, expressly granted by the Purchaser to secure the Purchaser’s obligations to the Company pursuant to these Terms, including the due and punctual payment of all monies owed by the Purchaser to the Company. The Purchaser agrees that this security interest will be a purchase money security interest for the purposes of the PPSA.
b. Any security interest arising by these Terms is a continuing security interest in respect of any products supplied by the Company and their proceeds. It is not diluted or extinguished if a product or any part thereof is processed, mixed or commingled or becomes part of another product or mass through any manufacturing, commingling or production process.
c. The Purchaser undertakes that it will:
i. Execute all documents and provide all information as required by the Company to enable the Company to register a financing statement (or financing change statement) of its security interest on the Personal Property Securities Register (PPSR);
ii. Not register a financing change statement as defined in section 10 of the PPSA or demand that the financing statement be altered pursuant to section 178 of the PPSA without the written consent of the Company;
iii. Not grant any security interest over any of the Purchaser’s personal property except in the ordinary course of business, nor will it grant a security interest in any account as original collateral under section 64 of the PPSA;
iv. Give the Company 14 days’ notice in writing of any proposed change in the Purchaser’s name, or of any change to the Purchaser’s trading details;
v. pay the Company’s costs of registering and maintaining its financing statement on the PPSR, and/or enforcing or attempting to enforce the Company’s security interest created by these Terms, including executing subordination agreements;
vi. indemnify the Company for all costs incurred by the Company (including the Company’s legal fees and disbursements) of obtaining an order pursuant to section 182 of the PPSA; and
vii. waive all rights it may have under section 115 of the PPSA upon enforcement.
a. The Purchaser shall be deemed to have accepted delivery of the products from the time the products are placed at the Purchaser’s disposal at the named place of delivery and any subsequent transportation of the products shall be carried out at the expense and risk of the Purchaser, whether or not the Purchaser directs the said transport.
b. If, upon accepting delivery, the Purchaser signs a delivery document and the products are later found to be missing or damaged, the signing of the delivery document may prejudice a claim made by the Purchaser against the Company or a third party, and the Company shall not be liable for any claim for loss or damage (including any incidental costs) which is not recovered from a third party.
c. The Company will charge the Purchaser fees for storage, transportation, detention, or similar causes, whether or not the costs are incurred at the Purchaser’s request, if the Purchaser is unable to accept delivery of the products when the Company, at its sole discretion advises the Purchaser, or otherwise deems the products are ready for delivery.
8. Claims for defective goods or goods damaged in transit must be made by the Purchaser within 24 hours of delivery, and made in writing within 7 days of the date of statement or delivery, whichever is earliest. All claims are subject to the discretion of the Company, and goods must be returned in the original packaging, without alteration, mixing or comingling with any other material. The Company may elect in its absolute discretion to replace any product with an equivalent product, or where services are supplied, by re-supply of the services in question.
In the event of a Default:
a. The Company may refuse to accept an order, suspend delivery of any outstanding orders by the Purchaser, retake any products for which the Purchaser has not paid in full, enforce any security interest, require payment by the Purchaser of proceeds held in a separate account; appoint a receiver and manager of any of the Purchaser’s property, being real property or personal property, with the receiver and manager having the powers as defined in the Corporations Act 2001 (Cth); and
b. the Purchaser irrevocably authorises the Company, and any lawful agent of the Company, to enter upon any premises occupied by the Purchaser and repossess any products and resell those products retaining the proceeds without prejudice to the Company’s right to claim the balance of all monies due and payable by the Purchaser to the Company.
c. the Purchaser will indemnify the Company for all expenses, including the fees, disbursements and commissions due to the Company’s lawyers, mercantile agents and other agents incurred in the actual or contemplated enforcement of these Terms.
10. Force Majeure
The Company is not liable, and will not be deemed to be in breach of any contract where delivery of the products within any agreed time is prevented or altered by reason of any event outside of the Company’s control.
In all respects, time shall be of the essence of the Purchaser’s obligations under these trading terms.
To the extent permitted by law, all warranties, guarantees or conditions other than those expressly stated in these Terms, and whether implied by statute, common law, custom, trade or otherwise, are expressly excluded as not binding on the Company.
13. Limitation of Liability
To the extent permitted by law:
a. Any term which the Purchaser claims is an implied term of any contract with the Company is expressly excluded, including any terms arising pursuant to the Australian Consumer Law;
b. The Company is not liable, in contract, tort, or otherwise for any damages or loss associated with the supply of products by the Company to the Purchaser, including for any claim that the products are not fit for purpose; and
c. The Purchaser will rely entirely on its own knowledge, skill and judgment in selecting the correct product from the Company.
14. Soft Fall Rubber
Where the product is supplied for application in soft fall rubber processes:
a. The Purchaser acknowledges that softfall rubber products are subject to discolouration, expansion, contraction, movement, cracking, chipping, tearing in the course of normal wear and tear, changes in temperature, humidity and exposure to UV and other elements;
b. The Purchaser agrees that it is liable for the management of any product after delivery, including:
i. Storing products to avoid deterioration;
ii. The creation of softfall installations, including the use of binding agents;
iii. Management of colour, batch and binding agent variation, whether by mixing batches or otherwise;
iv. Recording data on installation (including date, time, temperature, humidity, rainfall);
c. The Purchaser agrees that any failure by the Purchaser to hold, maintain and follow appropriate management processes (to the satisfaction of the Company) constitutes an absolute bar to any defence or claim by the Purchaser; and
d. If the Company, in its absolute discretion agrees to replace any softfall rubber product, the Purchaser shall be absolutely liable for the installation of the softfall rubber product, including the costs of, and incidental to the installation thereof.
All contracts made with the Company are deemed to be made in Victoria, and the parties irrevocably submit to the jurisdiction of the appropriate courts in or nearest Melbourne, in the State of Victoria, and the Purchaser waives its right to claim that the Victorian courts are an inconvenient forum.
If any dispute arises between the Purchaser and the Company in connection with the supply of products, the Purchaser agrees that as a condition of the dispute, the Purchaser will pay to the Company all amounts outstanding, with such moneys to be held by the Company in an interest bearing deposit account until the dispute is resolved. Failure to comply with this condition shall operate as a complete bar to any claim, counterclaim or defence by the Purchaser.
a. If a notice is required by these Terms, the notice may be given by the director or a person authorised to exercise the powers or duties associated with the director of the Company or the Purchaser.
Notices may be served on the Purchaser at any address advised by the Purchaser to the Company in relation to any order, application or account in connection with these Terms, including any address capable of receiving electronic communication.