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Untitled Document
The terms of payment are strictly thirty (30) days (or such other period as nominated by
the supplier herein) from the date of invoice. Advanced Electrical Equipment Pty Ltd
ABN 92 009 144 236 and its 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.
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.
Jurisdiction
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.
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.
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
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.
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.
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.
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
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
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.
Placement of an order, either verbally or in writing, will imply acceptance of the Supplier's
offer and of these terms and conditions.
Retention of title
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).
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.
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.
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.
The Applicant's indebtedness to the Supplier, whether in full or in part, will not be
discharged by the operation of clause 16 hereof unless and until the funds held on trust
are remitted to the Supplier.
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.
The Applicant will be responsible for the Supplier's costs and expenses in exercising its
rights under clause 18. 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.
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.
For the avoidance of doubt, the Supplier's interest constitutes a 'purchase money
security interest' pursuant to the PPSA.
Cancellation of terms of credit
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.
Upon cancellation with or without notice all liabilities incurred by the Applicant become
immediately due and payable to the Supplier.
Indemnity
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
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.
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
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
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.
The Applicant must give the Supplier a copy of the trust deed upon request.
Partnership
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.
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
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
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.
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
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).
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 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 recovery action, claim or remedy is successful.
Subject to clauses 38 and 40, 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 18 and 36.
(b) Secondly, in payment of any interest incurred in accordance with clause 43.
(c) Thirdly, in payment of the outstanding invoice(s).
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.
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.
Payments allocated (and/or reallocated) under clause 38 and/or 39 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
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.
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
The interest rate on any outstanding debts is a fixed rate of 15 percent per annum.
Set-off
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
If any part of this agreement is invalid or unenforceable, that part is deleted and the
remainder of the agreement remains effective.
Variation
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.
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.
Variations requested by the Applicant will only be binding upon the Supplier if they are
accepted in writing.
Consent to register
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.
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
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.
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.
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