Account Application

Commercial Terms & Conditions and Security Agreement

1. You agree that these terms and conditions:

(a) form part of any contract when you buy Goods from the Company;
(b) override any terms and conditions in any document provided to you if there is any difference between the document and these terms and conditions; and
(c) apply as soon as you ask the Company to provide Goods to you.

2. You acknowledge that if you are operating as a company, or a trust or over a number of entities, those entitles also agree to (either together and/or separately) responsible for your obligations under these terms and conditions.

3. Changing the Terms and Conditions

These terms and conditions may be changed or superseded from time to time. We may give you notice in writing through a letter or by email, or let you know by posting a notice on our website.

3.1 “Collateral” and/or “Goods” mean all goods and/or services:

(a) supplied to you by the Company; or
(b) ordered by you but not yet supplied; and
(c) includes goods described on any quotation, invoice, purchase order or any other document.

3.2 “Price” means the cost of the Goods as stated in our price lists, prepared quotes and/or specific arrangements. Our prices may change from time to time without notice.

4. Jurisdiction

4.1 Queensland laws apply to these terms and conditions and you submit to the non-exclusive jurisdiction of the courts of Queensland.

5. Payment Terms

5.1 The Company may ask you for a deposit before providing supply of Goods or Collateral to you.

5.2 In the event of a dispute, the complete undisputed portion of the account must be paid in accordance with the Payment Terms outlined in the invoice.

5.3 You agree to be liable for all legal and/or other expenses (including any debts to any debt collection agency) that the Company has incurred in obtaining or attempting to obtain payment for any of your outstanding amounts owed to the Company.

5.4 You acknowledge that:

(a) those expenses may be calculated on a commission basis at a percentage rate of up to 25% of the amount due; and
(b) you are liable to pay those expenses irrespective of the amount of work actually performed by the agency.

5.5 Amounts received by the Company is first used to pay off any interest, charges and expenses on the outstanding amount owed to the Company.

5.6 You agree to the Company charging you an interest rate of 1.50% per calendar month part thereof on any amount due and not paid by the due date outlined in the invoice.

5.7 You are liable for, and must pay, all fees for all costs incurred resulting from any cheque or electronic banking transaction being dishonoured for whatever reason.

6. Delivery

6.1 You agree that the Company may charge you a minimum load charge for delivery of loads smaller than the minimum load size for delivery of each particular type of goods. You should contact the Company’s sales office for details and rates of all surcharges.

6.2 The Company will unload the Collateral on the roadside next to the delivery address (“delivery site”). You must ensure the delivery site is safe, secure and in a condition where it can accept the unloading of the Collateral.

6.3 You must be present at the delivery site and must sign the Company delivery docket to acknowledge that the products and quantities described on the delivery docket have been delivered and comply with the Customer’s order.

6.4 If you are not present at the delivery site, the Collateral may be unloaded at delivery site. The Company is no longer be responsible for loss or damage to the Collateral at delivery.

6.5 If the Company’s vehicle is unable to unload the Collateral at the agreed time and has been forced to wait for more than 30 minutes because of a delay on your end, or a delay caused by you, then you agree to pay an hourly surcharge of $60. This surcharge is charged at 30 minutes interval.

6.6 If you are unable or unwilling to accept physical delivery of the Collateral when the Collateral is ready for delivery at the delivery site, the Company is entitled to charge a fee for any delay suffered, or to arrange for storage of the Collateral at your risk and cost. The cost will include all transportation, storage and other consequential costs.

6.7 If you are unable to be on site, does not sign or is not available to sign the delivery docket, the signature of the driver on the delivery docket shall be conclusive evidence of delivery to you of the Collateral and quantities described on the delivery docket including any applicable surcharges.

6.8 If you request the Company to unload the Collateral anywhere else (“alternate site”), it is your responsibility to provide suitable, safe and secure means for the delivery vehicle to access the alternate site. The Company may refuse to unload at the alternate site, in which case clause 6.6 applies.

6.9 The Company’s obligations and duty of care to you ends when the Collateral arrives at the delivery site.

6.10 You agree to hold the Company, its employees, contractors, agents and representatives harmless against all:

(a) damages and Consequential Loss arising from any delay in delivering the Collateral;

(b) damages and Consequential Loss to any property arising from any failure, or partial failure on the Company’s part to deliver Collateral;

(c) damages and Consequential Loss to any property arising from the Company’s delivery of the Collateral on the delivery site;

(d) damages and Consequential Loss to any property in connection with the Collateral being left on the delivery site;

(e) damages and Consequential Loss to any property in connection with the Company’s delivery vehicles leaving the alternate site;

(f) damages and Consequential Loss to any property in connection with the Company’s delivery vehicles accessing the alternate site;

(g) injuries and Consequential Loss to anyone arising from the Company’s delivery of the Collateral on the delivery site;

(h) injuries and Consequential Loss to anyone in connection with the Collateral being left on the delivery site;

(i) injuries and Consequential Loss to anyone in connection with the Company’s delivery vehicles leaving the alternate site; and

(j) injuries and Consequential Loss to anyone in connection with the Company’s delivery vehicles accessing the alternate site.

6.11 Consequential Loss means for the purposes of clause 6.9 and clause 10.2 means any indirect, consequential, punitive or exemplary loss or damages that flows from the delivery or failure to deliver the Collateral including:

(a) economic loss, loss of use, profit, opportunity to profit, revenue, business, savings, custom or contract; and

(b) increase in financing, operational and other costs; and

(c) loss or damage to goodwill or reputation.

7. Defects

7.1 You must inspect the Collateral on delivery and will notify the Company of any defects, short deliveries or any failure to fulfil any quotation or order within 48 hours. After 48 hours, you are deemed to be satisfied with the Collateral and the order.

7.2 If there is any defects, short delivers or any failure to fulfil any quotation, you will allow the Company access to the Collateral to inspect for any alleged defects.

8. Warranty

8.1 The Company warrants that Collateral supplied is of merchantable quality.

8.2 The Company does not warrant that the Collateral are fit for a particular purpose and, except or unless otherwise stated herein, warranties relating to title, defects or conformity of the Collateral are expressly excluded.

8.3 You are responsible for any costs associated with the return of Collateral for the purpose of a warranty claim.

9. Risk

9.1 You bear the risk in Collateral purchased on delivery to you or your agent or a carrier.

9.2 If any of the Collateral is damaged or destroyed prior to the title passing to you, the Company is entitled to any insurance proceeds payable for the Collateral without affecting any other rights and remedies the Company may have under any agreement.

10. Cancellation

10.1 The Company may cancel the delivery of Collateral at any time before delivery by giving notice to you by any means.

10.2 The Company is not liable for any loss or damage, including any Consequential Loss or damage, arising from such cancellation. Consequential Loss has the same meaning given to it in clause 6.11

10.3 You may cancel the delivery of Collateral at any time before delivery by giving notice to the Company by any means.

10.4 In the event that you cancel delivery of Collateral, you are liable for any costs incurred by the Company up to the time of the cancellation including, but not limited to, any re-stocking fees incurred by the Company.

11. Limitation of Liability

11.1 The Company’s liability to you for any reason related to the Goods is limited to the replacement or repair of the Goods or the amount paid or payable by you in respect of the particular Goods.

12. General

12.1 The Company accepts no responsibility for changes in any law which may affect supply.

12.2 The invalidity or unenforceability of any provision of these Terms and Conditions do not affect the validity or enforceability of the remaining provisions.

12.3 You acknowledge that all purchases are made relying solely upon your own skill and judgement.

Commercial Credit Agreement

1. Contract

a. By signing and submitting a completed Commercial Credit Application, the Customer is stating that the Customer agrees to the terms of this Commercial Credit Agreement.

b. By giving an account to the Customer, the Company is accepting the terms of this Commercial Credit Agreement being in force with the Customer.

2. Payment Terms

a. The Company will issue an invoice to the Customer for goods and services supplied to the Customer to the address stated in the Customer’s Commercial Credit Application;

b. The Customer must pay the amount stated in the invoice within 30 days of the date of the invoice.

c. If the invoice is not paid within 30 days in full, the Customer authorises the Company to deduct any outstanding amount from the credit card supplied by the Customer.

d. The Customer must not dispute any credit card charges by the Company as a result of the Company’s actions in clause (c) above.

e. If the Customer’s credit card is dishonoured for any outstanding amount, all outstanding amounts become immediately due and payable.

f. The Company, at its discretion can commence any debt recovery actions as it sees fit, including but not limited to, exercising its rights under the Guarantee and Indemnity provisions below, engaging solicitors, referring the matter to a debt collection agency or issuing the Customer with a statutory demand.

g. Any expenses, costs or disbursements incurred by the Company in recovering any outstanding amount must be paid by the Customer.

3. Other Terms

a. The Commercial Terms and Conditions located at prestonlandscapesupplies.com.au are incorporated into this Commercial Credit Agreement.

b. The Customer warrants that the credit it seeks from the Company is not wholly or predominantly for:

i. personal, domestic or household purposes;
ii. purchase, renovate or improve residential property for investment purposes; or
iii. refinance credit that has been provided for the above purposes.

c. The Customer warrants that the credit it seeks from the Company is wholly or predominantly for commercial purposes.

4. Guarantee and Indemnity

a. The Guarantors warrant that the Guarantors each have authority and consent to enter into this Commercial Credit Agreement.

b. The Guarantors guarantee to the Company that the Customer will pay all amounts owing to the Company under this Agreement when due.

c. On demand, the Guarantors must pay to the Company any such amount which the Customer does not pay to the Company under this Agreement when due.

d. The Guarantors acknowledge and agree to be bound by the Terms and Conditions, which is found on prestonlandscapesupplies.com.au and to the terms of this Agreement.

e. Each Guarantor indemnifies the Company against any loss, cost or expense, including but not limited to principal, interest, costs, expenses and taxes of any kind, which the Company suffers or incurs due to the Customer’s default under this Agreement, including the Terms and Conditions, and on demand must pay to the Company any such loss, cost or expense.

f. The indemnity is a continuing principal obligation enforceable against each Guarantor, even if the amounts guaranteed or indemnified are not recoverable from the Customer for any reason.

g. The Guarantors must pay the Company the reasonable expenses reasonably incurred to enforce this Guarantee and Indemnity.

h. The Guarantors acknowledge that this Guarantee and Indemnity is:

i. given to the Company jointly and severally by each Guarantor in consideration for the Company agreeing to enter into this Commercial Credit Agreement with the Customer at the Guarantors’ request;
ii. unconditional, irrecovable and continues until the Customer has received all amounts owing by the Customer to the Company in full;
iii. not affected by anything under the law relating to guarantees, by the Company’s delay in acting, by the Company allowing the Customer or a Guarantor extra time to pay, by any act or omission of any person, or by the amount of credit extended to the Customer varying from time to time;
iv. enforceable against a Guarantor even if it is not signed by another person intended to be a Guarantor, or if it is not enforceable against another Guarantor.

i. The Company need not incur an expense nor have exercised or exhausted its legal rights against the Customer before making a demand on the Guarantors.

j. The Customer may assign its rights under this guarantee provided by the Guarantors to a purchaser of the Company’s debts owed to the Company without the Guarantor’s consent.

k. If any payment to the Company is void or voidable as a result of an insolvency event or bankruptcy law, each Guarantor’s liability extends to that payment as if the payment had not been made. Unless the Company agrees otherwise, each Guarantor must not claim any amount in the insolvency of the Customer until the Company is paid all money guaranteed or indemnified under this Guarantee and Indemnity.

l. “Insolvency Event” means:

i. being in liquidation or provisional liquidation;
ii. under administration;
iii. having a controller (as defined in the Corporations Act 2001 (Cth)) or a person appointed to it or any of its property;
iv. being taken under s459(1) of the Corporations Act to have filed to comply with a statutory demand;
v. being unable to pay its debts or otherwise insolvent; or
vi. entering into a compromise or arrangement with, or assignment for the benefit of, any of its members or creditors.