Tradesman Pty Ltd (ACN 626 825 858) trading as Tradesman Roof Racks
1.1 “Buyer” means the party specified in Item 2 of Schedule 1 and where the context requires includes that party’s employees, agents, representatives, successors and assigns;
1.2 “Credit Application Form” means the credit application form attached as Schedule 2 to these trading terms and conditions;
1.3 “Delivered or Delivery” means the delivery, at the Buyer’s cost, of the Goods by the Seller to the Buyer’s nominated address for delivery or the provision of the services by the Seller to the Buyer (as the case may be). The Buyer’s costs for delivery of the Goods includes, but is not limited to, freight charges, courier charges, foreign exchange fees and charges, bank dishonour fees and any other like fees and charges incurred by the Seller on behalf of the Buyer.
1.4 “Financing Change Statement” has the same meaning given to it in the PPS Act;
1.5 “Financing Statement” has the same meaning given to it in the PPS Act;
1.6 “Goods” means any goods, products or services purchased by the Buyer from the Seller under any Goods Order or any other contract, agreement or order;
1.7 “Goods Order” means the written order given by the Buyer to the Seller specifying the type and quantity of Goods to be purchased by the Buyer and includes any Goods Order which is varied with the written consent of the Seller;
1.8 “Guarantee and Indemnity” means the Deed of Guarantee, Indemnity and Charge attached as Schedule 3 to these trading terms and conditions;
1.9 “PPS Act” means Personal Property Securities Act 2009 (Cth);
1.10 “PPS Register” means the Personal Property Securities Register under the PPS Act;
1.11 “Security Agreement” has the same meaning given to it in the PPS Act;
1.12 “Security Interest” has the same meaning given to it in the PPS Act;
1.13 “Seller” means the party specified in Item 1 of Schedule 1.
2. Acknowledgement by buyer
The Buyer acknowledges and agrees that these trading terms and conditions form an integral part of all Goods Orders or any other contracts, agreements and orders involving the sale of Goods by the Seller to the Buyer unless the Seller and the Buyer agree in writing to separate or varied trading terms and conditions.
3.1 The price of the Goods purchased by the Buyer shall be the Seller’s price for the Goods applicable on the date the Goods Order is accepted by the Seller in writing, unless otherwise agreed in writing between the Buyer and the Seller.
3.2 The Seller may by notice in writing to the Buyer vary the price of the Goods at any time prior to Delivery of the Goods. Within two (2) days of the giving of such notice, the Buyer may cancel any Goods ordered but not yet Delivered by notice in writing to the Seller to that effect, otherwise the Buyer is deemed to have accepted the Seller’s new price for the Goods.
3.3 The Seller will issue a tax invoice for the Goods purchased by the Buyer specifying the price for the Goods as determined in accordance with clause 3.1 or 3.2 and the cost of Delivery of the Goods.
4.1 The Buyer agrees to pay the price specified in the Seller’s tax invoice for any Goods invoiced on the date for payment specified in the tax invoice and if no date is specified on the last day of the month following the month in which the Seller issues a tax invoice.
4.2 Failure by the Buyer to pay the tax invoice for the Goods in accordance with clause 4.1 shall entitle the Seller to immediately cancel all outstanding Goods Orders and any other contracts, agreements or orders made with or placed by the Buyer, without incurring any penalty or liability for such cancellation.
4.3 Notwithstanding the Seller’s rights under clause 4.2, the Seller reserves the right to charge interest at the rate which is two (2) percent (2%) higher than the rate specified from time to time in the Penalty Interest Rates Act 1983 (Vic), calculated and compounding monthly, on any amount owing by the Buyer to the Seller from the date the amount was due until the date it is actually paid.
5. Seller’s liabilities for goods supplied
The Buyer acknowledges and agrees that:
5.1 no supply or sale of any Goods by the Seller to the Buyer is, or amounts to a sale by description or a sale by sample;
5.2 the Buyer has relied on its own knowledge and expertise when purchasing the Goods as to their suitability for any purpose;
5.3 the Seller has not given any warranties or made any representations as to the suitability of the Goods for any purpose and no previous supplies or purchases of Goods by the Buyer from the Seller is indicative that the Goods are of a particular quality or type or suitable or fit for a particular purpose; and
5.4 if there is a modification in the design or specifications of the Goods between the date on which the Goods Order was accepted by the Seller and the date the Goods were Delivered to the Buyer, due to a change in design or specifications by the manufacturer of the Goods, the Buyer agrees to accept the Goods as modified.
5.5 To the full extent permitted by, and to the extent it does not contravene The Australian Consumer Law, the Seller is not liable to the Buyer for any direct, indirect or consequential or contingent loss, liability, cost, damage or expense of whatever nature suffered or incurred by the Buyer or any third party from the possession, operation or use of the Goods by the Buyer or any other party, and without limitation includes but is not limited to loss occasioned by defective design, workmanship or materials in relation to the Goods and the Buyer indemnifies the Seller against all loss or damage suffered or incurred by it or a third party.
6. Retention of title to goods
6.1 The Seller and the Buyer acknowledge and agree that:
6.1.1 the legal and equitable title, ownership and property in the Goods remains with the Seller absolutely at all times until the Seller has been paid in full for the Goods purchased by the Buyer under all individual Goods Orders, contracts, agreements or orders between the Seller and the Buyer;
6.1.2 the Buyer is a trustee and bailee of the Goods and the proceeds received by or owed to the Buyer from the sale of the Goods by the Buyer;
6.1.3 the trust and bailment referred to in clause 6.1.2 continues in relation to separate purchases of the Seller’s Goods Delivered to the Buyer until the price for the Goods under all individual Goods Orders, contracts, agreements or orders between the Seller and the Buyer have been paid in full;
6.1.4 the Goods are at the Buyer’s risk on and from the time the Goods are Delivered to the Buyer; and
6.1.5 the Buyer’s right to possession of the Goods immediately ceases if it does anything, or fails to do anything, which results, or would result, in an event occurring under clause 14 of these trading terms and conditions.
6.2 Until Goods are paid for in full, the Buyer must:
6.2.1 not sell or supply any Goods to any person outside its ordinary or usual course of business;
6.2.2 sell or supply any Goods to any person in its ordinary or usual course of business as an agent for the Seller and agrees to:
(a) place any proceeds from the sale or supply of any Goods into a separate bank account, which is at all times identifiable as the money of the Seller ensuring that none of the proceeds are mingled with any other money or deposited into any overdrawn account; and
(b) pay to the Seller the proceeds referred to in clause 6.2.2(a) on their due date for payment plus any interest payable;
6.2.3 not allow any person to create, have or acquire any security interest in the Goods;
6.2.4 insure the Goods, in the name of the Buyer and the Seller, for their full replacement value with a reputable insurer and provide a certificate of currency of such insurance to the Seller immediately upon written request by the Seller;
6.2.5 properly and separately store and label the Goods Delivered so as to distinguish them from the Buyer’s own goods, in a manner which makes them readily identifiable as the Seller’s Goods.
6.3 The Buyer acknowledges and agrees that the Seller is not obliged or required to distinguish between Goods sold to the Buyer pursuant to invoices which remain unpaid and Goods sold to the Buyer pursuant to invoices which have been paid.
6.4 If the Buyer fails to pay for any of the Goods by their due date for payment, or as otherwise agreed in writing between the Buyer and the Seller, the Seller may enter the Buyer’s premises, or any other premises in which the Goods are stored or in which the Seller reasonably believes they are stored, during business hours without the requirement to provide any previous notice, for the purpose of auditing, inspecting or retaking and recovering possession of the Goods and the Buyer hereby grants to the Seller an irrevocable licence to do so without liability for trespass or any resulting damage. The Buyer agrees that the Seller may use reasonable force in exercising its power of auditing, inspecting or retaking possession of the Goods under this clause 6.4
6.5 The Buyer acknowledges and agrees that clause 6.4 constitutes specific authority for the Seller to enter the Buyer’s premises, or any other premises in which the Goods are stored or in which the Seller reasonably believes they are stored, for the purposes specified in clause 6.4 and the Seller may rely on clause 6.4 and this clause 6.5 against the Buyer in the event of a dispute, mediation, arbitration or court proceeding with the Buyer.
6.6 The Buyer indemnifies the Seller against any claim made by the Buyer or a third party arising out of the Seller exercising its rights under clause 6.4 and 6.5.
6.7 The Buyer acknowledges and agrees that the Seller will not be deemed to be relinquishing any of its rights as a creditor when exercising any of its rights as owner of the Goods under this clause 6.
6.8 The express and implied terms of this clause 6 continue even if any Goods Order, contract, agreement or order between the Seller and the Buyer is repudiated by the Buyer.
6.9 The Seller does not relinquish any of its rights against the Buyer until all monies due and payable to it by the Buyer, are paid in full.
7. Credit application
The Buyer acknowledges and agrees that:
7.1 its duly authorised representative has the authority to bind the Buyer to these trading terms and conditions upon purchasing goods;
7.2 it is legally bound by these trading terms and conditions immediately upon the Buyer’s authorised representative purchasing goods or the Seller accepting a Goods Order from the Buyer;
7.3 the Seller may, in its absolute discretion, from time to time, provide credit facilities to the Buyer in relation to Goods purchased by the Buyer from the Seller;
8. Matters beyond control of seller
The Seller is not be responsible to the Buyer in any way if it is unable or is delayed in performing its obligations under any Goods Order, contract, agreement or order relating to the sale and Delivery of Goods to the Buyer, if that inability or delay arises directly or indirectly from the happening of any event not within the reasonable control of the Seller or because of the failure by the Buyer to provide the Seller with any information or thing the Seller requires and has requested from the Buyer, which is required by the Seller in order for it to Deliver the Goods to the Buyer.
9. Matters relating to goods orders
The Buyer acknowledges and agrees that:
9.1 if a dispute arises between the Buyer and Seller concerning any Goods Order, contract, agreement or order (including but not limited to telephone, facsimile or computer-generated orders), the internal records of the Seller will be, except in the case of manifest error, conclusive evidence of what Goods were ordered and/or purchased by the Buyer as well as the price payable by the Buyer to the Seller for those Goods and the cost of Delivery of those Goods;
9.2 each order it places with the Seller will be, and be deemed to be, a representation by the Buyer that at the time it placed the order for the purchase of the Goods, it was solvent and able to pay all of its debts as and when they fell due; and
9.3 failure by the Buyer to pay the Seller’s tax invoice on the date due for payment is conclusive evidence that the Buyer had no reasonable grounds for making the representation referred to in clause 9.2.
10. Claims for damaged, defective or incomplete goods
10.1 The Seller may refuse any claim made by the Buyer for any Goods which the Buyer alleges were Delivered in a damaged or defective condition or which are incomplete or do not meet the specifications agreed upon between the Buyer and the Seller, unless the Buyer gives written notice to the Seller within three (3) days of Delivery of those Goods.
10.2 The liability of the Seller in the event of a claim by the Buyer for any alleged damaged or defective Goods or Goods which are incomplete or do not meet agreed upon specifications is limited to the replacement value of those Goods or the supply of equivalent Goods.
10.3 Any Goods which are the subject of a claim by the Buyer under this clause 10 must be promptly returned to the Seller at the Buyer’s sole costs and expense.
No Goods Order, contract, agreement or order between the Seller and the Buyer may be assigned without the Seller’s written consent, which consent may be given or withheld by the Seller in its absolute discretion.
12. Buyer warranty
12.1 If the Buyer is a corporation, it warrants to the Seller that the individual signing any Goods Order, contract, agreement, order, credit application or these trading terms and conditions on the Buyer’s behalf has the necessary authority to sign on behalf of and to bind the Buyer.
12.2 The individual signing any Goods Order, contract, agreement, order, credit application or these trading terms and conditions on the Buyer’s behalf warrants that he or she has the necessary authority to sign on behalf of and to bind the Buyer.
13. Intellectual property
The Buyer must not use any of the Seller’s intellectual property including copyright, patents, trademarks, logos, designs, know-how and any other type of intellectual property, whether registered or unregistered, which belong to the Seller without the prior written consent of the Seller.
The Seller may immediately terminate any Goods Order, contract, agreement or order by notice in writing to the Buyer and enter the Buyer’s premises at any time, without notice, without being liable to trespass and using reasonable force if necessary and retake possession of any Goods without prejudice to any other rights the Seller may have under these trading terms and conditions or any Goods Order, contract, agreement or order if the Buyer:
14.1 commits a breach of any term of any Goods Order, contract, agreement or order between the Seller and the Buyer or these trading terms and conditions;
14.2 ceases to carry on its current business or a material part of its current business, or threatens to do either of these things;
14.3 threatens or resolves to wind itself up or to appoint an administrator or liquidator or gives notice of an intention to do so;
14.4 has a receiver or a receiver and manager appointed to it;
14.5 is placed under administration, liquidation or makes or proposes to make any arrangement with its creditors or becomes bankrupt;
14.6 has a judgement debt entered into against it for an amount exceeding $1,000.00 and this is not satisfied by the Buyer within 14 days.
15. Recovery of costs
The Buyer indemnifies the Seller from and against all costs, charges and expenses suffered or incurred by the Seller resulting from any breach by the Buyer of any Goods Order, contract, agreement, order or these trading terms and conditions and must pay these costs, charges and expenses to the Seller immediately upon demand.
16. Personal properties securities act 2009
The Buyer acknowledges and agrees that:
16.1 for the purposes of the PPSA, a binding Security Agreement is deemed to have been formed between the Seller and the Buyer on and from the earliest to occur of the following events:
16.1.1 the Buyer signing these trading terms and conditions, the Credit Application or the Guarantee and Indemnity;
16.1.2 the Seller accepting any Goods Order from the Buyer, resulting in these trading terms and conditions becoming immediately binding on the Buyer, even if they are not signed by the Buyer;
16.1.3 registration by the Seller of it’s Security Interest against the Buyer on the PPS Register, in respect of these trading terms and conditions, the Credit Application, the Guarantee and Indemnity, or any Goods Order or the provision of any finance or credit by the Seller to the Buyer; or
16.1.4 the provision of any Goods or credit or finance to the Buyer by the Seller;
16.2 upon a binding Security Agreement being formed between the Seller and the Buyer, the Seller will have a Security Interest in:
16.2.1 all Goods previously supplied by the Seller to the Buyer; and
16.2.2 all Goods that will be supplied in the future by the Seller to the Buyer; and
16.3 the Seller may register its Security Interest created by these trading terms and conditions, the Credit Application, the Guarantee and Indemnity, any Goods Order or the provision of any finance or credit by the Seller to the Buyer on the PPS Register pursuant to the PPS Act;
16.4 upon request by the Seller, the Buyer must sign any further documents and/or provide any further information which the Seller requires, including but not limited to the full name, address and date of birth of a Buyer which is an individual, to:
16.4.1 register a Financing Statement or Financing Change Statement in relation to a Security Interest;
16.4.2 register any other document on the PPS Register required to be registered by the PPSA in relation to a security interest or interests held by the Seller against the Buyer; and
16.4.3 correct a defect in a document referred to in clause 16.4.1 or 16.4.2;
16.5 The Buyer must not register, or permit to be registered:
16.5.1 a Financing Change Statement in relation to a Security Interest held by the Seller; and
16.5.2 a Financing Statement or Financing Change Statement in relation to Goods acquired by the Buyer from the Seller in favour of a third party;
16.6 the Buyer must pay to the Seller immediately upon demand by the Seller all costs of and in connection with the Seller registering, amending or releasing any Security Interest held by the Seller against the Buyer on the PPSR or lodging any other document on the PPSR in respect of that security interest which is required under the PPSA or which the Seller deems necessary to protect it’s security interest against the Buyer;
16.7 the Seller and the Buyer acknowledge and agree that:
16.7.1 the Buyer is the debtor for the purpose of section 275(6)(a) of the PPS Act;
16.7.2 neither the Seller or the Buyer will disclose any information of the kind specified in section 275(1) of the PPS Act; and
16.7.3 this clause 18.7 constitutes a confidentiality agreement for the purpose of section 275(6)(a) of the PPS Act.
16.8 the following provisions of the PPSA are expressly excluded from, and do not apply to these terms and conditions of sale:
16.8.1 Section 121(4) – enforcement of liquid assets – notice to grantor;
16.8.2 Section 125 – obligations to dispose of or retain collateral;
16.8.3 Section 129 – disposal by purchase;
16.8.4 Section 130(a) – notice of disposal of collateral – to grantor;
16.8.5 Section 132(3)(d) – statement of account after disposal;
16.8.6 Section 132(4) – statement of account if no disposal;
16.8.7 Section 135 – notice of retention of collateral;
16.8.8 Section 142 – redemption of collateral;
16.8.9 Section 143 – reinstatement of security agreement; and
16.8.10 Section 157 – verification statements to grantor by secured party.
17. Governing law
These terms and conditions of sale shall be governed by and construed in accordance with the laws of the State of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of that State.