Terms & Conditions
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These terms and conditions may be changed or superseded from time to time.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. Personal Property Securities Act 2009 (PPSA)
5.1 You grant a security interest in all and any sale of Collateral, including but not limited to intellectual property and all other present or after-acquired property.
5.2 The Company may register such security interest on the Personal Property Securities Register.
5.3 You agree that all purchases under this agreement are for commercial purposes only and the Consumer Credit Act will not apply.
5.4 You and the Company agree to contract-out of the PPSA in accordance with section 115 of the PPSA to the extent that the section applies for the benefit of, and does not impose a burden on, the Company. You waive your right to receive a copy of any Financing Statement or any Financing Change Statement registered by the Company in respect of the security interest created by these terms and conditions.
5.5 You agree to execute any documents, provide all relevant information and co-operate with the Company so that the Company has a perfected security interest in the personal property charged and, if applicable, a Purchase Money Security Interest (PMSI).
5.6 You agree to notify the Company of any change in your business structure or office holders and managers 7 days prior to any such change taking effect.
5.7 You agree not sell or grant any other security interest in the Collateral until all monies owing to the Company are paid in full.
6. Payment Terms
6.1 The Company may ask you for a deposit before providing supply of Goods or Collateral to you.
6.2 Credit Account Customers must pay all amounts for purchases in full without deduction or set-off within the due date outlined in the invoice.
6.3 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.
6.4 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.
6.5 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.
6.6 Amounts received by the Company is first used to pay off any interest, charges and expenses on the outstanding amount owed to the Company.
6.7 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.
6.8 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.
6.9 The Company can end any agreement it has with you if you do not comply with clause 6.2 at anytime after the due date on the invoice.
7. Delivery
7.1 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.
7.2 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.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
7.7 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.
7.8 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 7.6 applies.
7.9 If the Collateral is delivered on pallets, the pallets remain the property of the Company. You will be charged for all of the pallets but the Company will give a credit when you return the pallets in good condition.
7.10 The Company’s obligations and duty of care to you ends when the Collateral arrives at the delivery site.
7.11 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.
7.12 Consequential Loss means for the purposes of clause 7.10 and clause 12.2 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.
8. Defects
8.1 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.
8.2 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.
9. Warranty
9.1 The Company warrants that Collateral supplied is of merchantable quality.
9.2 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.
9.3 You are responsible for any costs associated with the return of Collateral for the purpose of a warranty claim.
10. Retention of Title
10.1 Title in all the Collateral supplied remains with the Company and does not pass to you until all monies owing to the Company together with all collection, repossession and/or legal costs incurred, have been paid in full. Until title passes to you, you acknowledge that these conditions create a PPSA purchase money security interest in the Collateral and any proceeds of their sale in the Company’s favour.
10.2 The Company retains an equitable interest in the Collateral, whether separate or co-mingled or accessioned, which must be stored in such a manner as to be clearly identifiable as the property of the Company, until title has passed to you.
10.3 If you re-sell the Collateral, the Company has the right to trace any proceeds of sale to the extent that they relate to its Collateral which are incorporated.
10.4 If payment has not been received, you will transfer all of your rights in respect of the sale price to the Company.
10.5 At any time until title has passed to you, the Company can demand that you return the Collateral or any part of them to the Company.
10.6 In the event that you default in the payment of any monies owing, the Company and its employees or agents shall have the right to enter without notice upon your premises or any other premises where the Collateral is known to be stored to repossess the Collateral. You agree to grant reasonable access to the Company, its employees or agents to do all things required to secure repossession.
11. Risk
11.1 Despite clause 10, you bear the risk in Collateral purchased on delivery to you or your agent or a carrier.
11.2 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.
12. Cancellation
12.1 The Company may cancel the delivery of Collateral at any time before delivery by giving notice to you by any means.
12.2 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 7.12
12.3 You may cancel the delivery of Collateral at any time before delivery by giving notice to the Company by any means.
12.4 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.
13. Limitation of Liability
13.1 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.
14. General
14.1 The Company accepts no responsibility for changes in any law which may affect supply.
14.2 The invalidity or unenforceability of any provision of these Terms and Conditions do not affect the validity or enforceability of the remaining provisions.
14.3 You acknowledge that all purchases are made relying solely upon your own skill and judgement.
15. Privacy
The Company is committed to protecting your privacy. Its policy is to comply with the National Privacy Principles for the handling of personal information as set out in the Privacy Act, 1988. In accordance with those principles, and with the Company’s Privacy Policy, persons will be given access to their personal information upon request. The Company uses the types of personal information collected, to enable it to supply customers with its products and services and for assessing Applications for Commercial Credit, managing accounts and, if necessary, assessing its risk in, and collecting debts.
15.1 Your information may be disclosed to the Company’s associated or related entities, third parties related to your business, personal and commercial activities (e.g. referees and others as set out in the Privacy Policy), contractors, other credit providers, whether or not an account is overdue and, if necessary, its risk insurers, debt collectors and credit reporting agencies. If all or part of the information requested is not provided, the Company may not be able to consider any application or to provide credit facilities. If you have any concerns about the Privacy Policy are requested to direct them to us.
15.2 You acknowledge and give consent that the Company may make enquiries as to the credit and financial situation of me or any of you and further consent to the use of any information obtained as a result of those enquiries, including information disclosed in the Credit Application, as the Company reasonably sees fit from time to time, for purposes including but not limited to:
(a) passing the information on to a credit reporting agency;
(b) passing the information on to a debt collector; and/or
(c) obtaining further personal information, including consumer and/or commercial credit information, relating to you or any of your related entities from another body for any use reasonably connected with provision of credit or the collection of debt subject to the provisions of the Privacy Act 1988.
