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Terms & Conditions

Terms & Conditions

 

Payment terms 

1.     The terms of payment are strictly thirty (30) days (or such other period as nominated by the supplier herein) from end of month of date of invoice.  Cocktail Holdings Pty Ltd trading as Kerbing West Extruded Concrete Kerbing ABN 78 009 342 634, Merlot Holdings Pty Ltd ABN 70 065 415 232 and their related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.

2.     Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier from time to time, the Supplier will be entitled to charge an administration fee of:

(a)    10 percent of the amount of the invoice payable; and

(b)    a further 10 percent per annum payable per year, or part thereof, until payment by the Applicant.

3.     The goods and work will be paid for by the Applicant at the rates according to the actual quantities supplied as shown on the quote, subject to these conditions.  The Applicant acknowledges that, unless otherwise specifically stated on the face of this quotation, the rates are subject to additional charges pursuant to the fees and surcharges sheet.  The Applicant acknowledges that the goods and works will be paid for in full without retention or set off. 

Jurisdiction

4.     The Applicant acknowledges and agrees that this agreement will be governed by the laws of Western Australia, and the laws of the Commonwealth of Australia which are in force in Western Australia.

5.     The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.

6.     The parties to this agreement submit to the non-exclusive jurisdiction of the courts of Western Australia and the relevant federal courts and courts competent to hear appeals from those courts.

Security/charges

7.     The Applicant charges in favour of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.

8.     The Applicant charges in favour of the Supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.

9.     The Applicant appoints as its duly constituted attorney the Supplier's company secretary from time to time to execute in the Applicant's name and as the Applicant's act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.

10.    Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Applicant under this agreement.  The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.

Purpose of credit

11.    The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.

Formation of contract

12.    Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation.  The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it.  Only written acceptance by the Supplier of the Applicant’s offer will complete a contract. 

13.    Placement of an order, either verbally or in writing, will imply acceptance of the Supplier’s offer and of these terms and conditions. 

Site Access

14.    The Supplier will deliver and the Applicant will receive the goods and work at the kerb alignment in a timely manner.  The Applicant will be responsible for providing adequate, and timely access to the site for the Supplier’s material, personnel and equipment and the client will indemnify the Supplier for all loss (including delay and establishment costs) incurred by the Supplier as a result of failure to provide such access.  If the Supplier or its agents enter the site for the purposes of delivering the goods, the Applicant shall indemnify the Supplier for any loss incurred by the Supplier arising out of or in connection with such.  Where the Supplier leaves equipment on the site in connection with the supply / performance of the goods and works, the Applicant shall take all reasonable precautions to secure the site to prevent loss or damage to the equipment or any injury to persons entering upon the site.

Delivery / Supply

15.    The Supplier will use reasonable endeavours to supply goods and work in accordance with the Applicant’s schedule. 

 

16.    The Applicant shall check that the goods, work description and quantity on the docket confirms with its requirements.  The Applicant must record any discrepancies in writing on the work docket including discrepancies in quantity, specification. 

 

17.    Failure to make such notifications on the copy of the docket retained by the Supplier is deemed to be conclusive evidence that the docket is now accurate, the Applicant accepts the goods and work.

Site visits and hours

18.    Unless otherwise stated on the face of a quotation, a quotation is based on:

(a)    the whole of the supply / performance of the goods and work being undertaken in the metropolitan area.  Supply / performance of the goods and work undertaken outside of the metropolitan area will incur additional charges; 

(b)    the whole of the goods and work being available for completion at one site visit;

(c)    the whole of the supply / performance of the goods and work being conducted during normal hours.  Should it be necessary to supply / perform the goods and works or any necessary establishment work on a Saturday, Sunday or public holiday, then additional charges will apply which will be calculated in accordance with the variations clause.  The Supplier’s normal hours of business for work are listed on the Supplier’s fees and surcharges sheet.

Information & IP

19.    The Applicant acknowledges and agrees that:

(a)    the Applicant must provide all relevant information (including all specifications relating to the goods and works, details relating to the site, and other matters that may affect the Supplier’s ability to complete the goods and works) to the Supplier to enable the Supplier to supply / perform the goods and works; and

(b)    the Supplier in giving this quotation has relied upon the accuracy and completeness of such information, and the Applicant hereby warrants to the Supplier the accuracy and completeness of all information supplied.

20.    If the Supplier has provided the Applicant with any information (including works, the Applicant acknowledges) that it has formed its own opinion as to the correctness or otherwise of the information and has not and will not rely on the Supplier in respect of such information.

21.    All intellectual property of the Supplier, including any developed during the course of supply / performance of the goods and work, shall remain the sole property of the Supplier and no license, right or other interest of any kind in respect of such intellectual property is granted, created or transferred to the Applicant.

Safety

22.    The Applicant is responsible for ensuring safe and adequate access to the site for work and all other aspects of site safety.

23.    The Applicant shall notify the Supplier in writing at least 48 hours prior to work of any obstacles or peculiarities in relation to the site.

Retention of title

24.    Title in the goods does not pass to the Applicant until the Applicant has made payment in full for the goods and, further, until the Applicant has made payment in full of all the other money owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).

25.    Whilst the Applicant has not paid for the goods supplied in full at any time, the Applicant agrees that property and title in the goods will not pass to the Applicant and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.

26.    Until payment in full has been made to the Supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other similar goods. 

27.    The Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Supplier, the Applicant will sell as agent and bailee for the Supplier and the proceeds of sale of the goods will be held by the Applicant on trust for the Supplier absolutely.

28.    The Applicant’s indebtedness to the Supplier, whether in full or in part, will not be discharged by the operation of clause 27 hereof unless and until the funds held on trust are remitted to the Supplier.

29.    The Applicant agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with or without prior notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicant’s possession, custody or control when payment is overdue. 

30.    The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 29.  Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.

31.    The Applicant agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicant hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.

32.    For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA. 

Cancellation of terms of credit

33.    The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not.

34.    Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.

Indemnity 

35.    The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim.  This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis. 

Provision of further information

36.    The Applicant undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the Applicant’s creditworthiness, including an updated credit application.

37.    If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution).  In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.

Corporations

38.    If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.

Trustee capacity

39.    If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that:

(a)    the Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;

(b)    the Applicant has the right to be indemnified out of trust assets;

(c)    the Applicant has the power under the trust deed to sign this agreement; and

(d)    the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.

40.    The Applicant must give the Supplier a copy of the trust deed upon request.

Partnership

41.    If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier. 

42.    If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier.  In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.

Insolvency

43.    If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder.  The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent. 

Waiver

44.    A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing.  A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant's authorised officer in writing.

45.    Until ownership of the goods passes, the Applicant waives its rights it would otherwise have under the PPSA:

(a)    under section 95 to receive notice of intention to remove an accession;

(b)    under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law;

(c)    under section 121(4) to receive a notice of enforcement action against liquid assets;

(d)    under section 129 to receive a notice of disposal of goods by the Supplier purchasing the goods;

(e)    under section 130 to receive a notice to dispose of goods;

(f)     under section 132(2) to receive a statement of account following disposal of goods;

(g)    under section 132(4) to receive a statement of account if no disposal of goods for each 6 month period;

(h)    under section 135 to receive notice of any proposal of the Supplier to retain goods;

(i)     under section 137(2) to object to any proposal of the Supplier to retain or dispose of goods;

(j)     under section 142 to redeem the goods;

(k)    under section 143 to reinstate the security agreement; and

(l)     under section 157(1) and 157(3) to receive a notice of any verification statement.

Costs 

46.    The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant.  The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).

47.    The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including letters of demand, collection costs, debt recovery fees and legal costs on an indemnity basis.  Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the letter of demand, recovery action, claim or remedy is successful.

48.    Subject to clauses 49 and 51, payments by, or on behalf of, the Applicant will be applied by the Supplier as follows.

(a)    Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 29 and 47.

(b)    Secondly, in payment of any interest incurred in accordance with clause 54.

(c)    Thirdly, in payment of the outstanding invoice(s).

49.    The Supplier may apply and allocate payments received by, or on behalf of, the Applicant in a manner in the Supplier’s absolute and unfettered discretion, including so as to attribute the payments to satisfy obligations which are or are not secured by a purchase money security interest or otherwise.

50.    To the extent that payments have been allocated to invoices by the Supplier in its business records, the Supplier may, in its sole and unfettered discretion,  allocate and/or retrospectively reallocate payments in any manner whatsoever at any time whatsoever.

51.    Payments allocated (and/or reallocated) under clause 49 and/or 50 will be treated as though they were allocated or reallocated, respectively, in the manner determined by the Supplier on the date of receipt of payment. 

Taxes and duty

52.    The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement.  The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.

53.    If as a result of:

(a)    any legislation becoming applicable to the subject matter of this agreement; or

(b)    any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;

the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.

Interest rates

54.    The interest rate on any outstanding debts is a fixed rate of 15 percent per annum. 

Set-off

55.    All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding.

56.    Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.

Miscellaneous

57.    The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier's control.

58.    The Supplier shall not be under any liability whether in contract, tort or otherwise from any cause, whether occasioned by negligence or otherwise, for any injury, damage or loss, including special, indirect or consequential damage or loss whether to persons or property, arising out of this agreement or the products, including any defects in the products, anything connected with the products, later delivery or non-delivery of the products or any other work related to the product.

59.    In relation to the supply of goods, the Supplier’s liability is limited to:

(a)    replacing the goods or supplying similar goods;

(b)    repairing the goods;

(c)    providing the cost for replacing the goods or for acquiring equivalent goods; and

(d)    providing the cost for having the goods repaired. 

60.    In relation to the supply of services, the Supplier’s liability is limited to:

(a)    supplying the service again; or 

(b)    providing for the cost of having the services supplied again.

61.    The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.

62.    The Applicant will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.

63.    The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant’s authorised representative.

64.    The Applicant further agrees that where we have rights in addition to those under part 4 of the PPSA, those rights will continue to apply.

65.    The Applicant irrevocably grants to the Supplier the right to enter upon the Applicant’s property or premises, without notice, and without being in any way liable to the Applicant or to any third party, if the Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and the Applicant shall indemnify the Supplier from any claims made by any third party as a result of such exercise.

66.    Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.

Severance

67.    If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.

68.    If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.

Variation

69.    The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.

70.    Any proposed variation to these terms and conditions by the Applicant must be requested in writing.  The Supplier may refuse any such request without providing reasons either orally or in writing.

71.    Variations requested by the Applicant will only be binding upon the Supplier if they are  accepted in writing.

Consent to register

72.    The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.

73.    The Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.

Entire agreement

74.    This agreement constitutes the entire agreement between the parties relating in any way to its subject matter.  All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect.  No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.

75.    Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.

Privacy Act

The Applicant agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012  contained in this document.