TERMS & CONDITIONS
SUPPLIER’S TERMS AND CONDITIONS OF TRADING
(“The Supplier’s Trading Terms”)
1. PAYMENT OF ORDERS/ACCOUNTS
All container orders made to the Supplier must be paid within 60 days of the date of the Supplier’s Invoice, all forward orders made to the Supplier must be paid within 60 days EOM and all other orders made to the Supplier must be paid within 30 days EOM (“the Payment Period”) and where the payment in full is not received by the Supplier prior to the expiry of the Payment Period then the Applicant shell be liable to pay any interest on the amount outstanding as at the expiry of the Payment Period at the rate of 1% per month until payment in full is received by the Supplier. Any outstanding accounts must be finalized 14 days prior to the container or forward order requested shipment date, where this requirement is not met, goods will not be shipped until account is current. Where The Supplier incurs any additional costs associated with the container delivery the store will be invoiced for any additional costs. If the account is continually outside our Payment Period the offending store will be required to make payments on all Future orders in full before the shipment. The Supplier reserves the right to request a 50% deposit against any Catalogue, Container or other promotional items if the Store is placed on Credit Hold at the time of the transaction being initiated. The Supplier is hereby irrevocably authorized to allocate the payment of any money received from time to time from the Applicant towards any outstanding account incurred with the Supplier by the Applicant. All prices quoted shall be exclusive of Goods and Services Tax (“GST”) and GST will be payable on the sale price on payment of the invoice. All sums outstanding become immediately due and payable by the Applicant to the Supplier if the Applicant makes default in paying any other sums due to the Supplier, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed.
2. PROPERTY AND DELIVERY OF GOODS
a) The Goods supplied by the Supplier to the Applicant shall be at the Applicant’s risk immediately on delivery to the Applicant or immediately on delivery as directed by the Applicant or immediately on collection by the Applicant’s transport contractor as the case may be.
b) Notwithstanding that the risk of loss or damage to the Goods passes to the Applicant in accordance with the previous sub-paragraph (a), property in and ownership of the goods shall not pass to the Applicant until payment in full for the Goods shall have been received by the Supplier.
c) Until payment in full of the invoiced cost of the Goods shall have been received by the Supplier, the Applicant shall hold the Goods on a fiduciary basis as a Bailee only for the Supplier and the Applicant shall (at its own expense) keep the Goods properly and safely stored separately from any other goods and stock of the Applicant and any other third party and in such a way as the Goods shall be readily identified as the goods of the Supplier and the Applicant shall not, subject to sub-clause d(i), pledge, mortgage, charge or part with the Goods or attempt to do so without the prior written consent of the Supplier.
(i) Notwithstanding that the property in the Goods has not passed to the Applicant, the Applicant may resell the Goods or any part thereof in the name of the Applicant but only as agent for the Supplier and may deliver any such Goods to the buyer of them but only on terms which will not prejudice the Supplier’s ability to obtain the sale proceeds thereof.
(ii) Any amount paid by the buyer of such Goods from time to time to the Applicant (hereinafter referred as “the sale proceeds”) shall be held by the Applicant in trust for the Vendor, banked in a separate bank account relating only to the sale proceeds of the Goods of the Supplier under this and/or other contracts between the Supplier and Applicant and shall be forwarded as soon as possible after receipt to the Supplier.
(iii) If and when the full amount of the Price of the Goods has been received by the Supplier, any further part of the price received by the Applicant upon any resale by it of the Goods may be retained by the applicant as its commission for effecting such sale as agent for the Supplier.
e) An act of default of this contract shall be deemed to occur in the event of any of the following (and any of the acts described in sub=paragraph (e) (i) to (iv) below are herein collectively referred to as an “Act of Default”).
(i) the Applicant failing to make payment in full of the invoice cost of the Goods within 30 days from the date of invoice,
(ii) the Applicant, if requires herein, failing to insure the Goods from the date of delivery thereof by the Supplier and to provide evidence of such insurance to the Supplier,
(iii) any distress or execution being levied upon the Applicant’s Goods or property,
(iv) the Applicant, being a company, becoming unable to pay its debts as they fall due, offering to enter into any scheme of arrangement with its creditors, the passing by the Board of Directors of the Applicant of any resolution to wind up the Applicant, the filing of any petition to wind up the Applicant or the appointment of an administrator or receiver / manager in respect of the Applicant’s affairs, the Applicant, in the case of a natural person, being declared bankrupt,
(v)immediately upon the Applicant committing any Act of Default any right to sell the Goods in which the title to property remains vested in the Supplier shall cease forthwith and the Applicant shall upon the happening of any Act of Default immediately place all of the Goods then remaining in its possession or under its control at the disposal of the Supplier and the Supplier is hereby irrevocably authorized by the Applicant to nominate a person to enter the Applicant’s premises during normal business hours for the purpose of repossessing such of the Goods still in the possession or under the control of the Applicant and where necessary to use no more than reasonable force to liberate and take possession of the Goods. Where the Goods are stored in a warehouse conducted by a person other than the Applicant immediately upon committing any Act of Default the Applicant shall be deemed to have irrevocably appointed the Supplier the attorney of the Applicant with the authority in the name of the Applicant to direct the warehouseman to release any of the Supplier’s Goods in the possession or under the control of the warehouseman whether or not the Payment Period has expired and the Supplier shall be at liberty to resell the Goods after repossession of the same pursuant to this clause.
f) Until the full amount of the price of the Goods due to the Supplier is received by the Supplier the Applicant
(i) shall maintain and keep full and up to date records of the Goods supplied by the Supplier including those Goods on-sold by the Applicant,
(ii) hereby irrevocably authorizes the Supplier to enter its premises during normal business hours from time to time to inspect the residue of the Goods remaining unsold by the Applicant, the Applicant’s records relating to the Goods and also to inspect the accounts including bank accounts into which the proceeds of sale of the part of the Goods already sold are by this clause required to be deposited pending payment to the Supplier.
g) In the event that the Applicant incorporates or transforms the products (or any portion of them) into any other product or products produced by the Applicant (or a third party), then the Applicant must hold a proportion of any payment (referred as “Relevant Proportion”) received by the Applicant for such product or products on trust for the Supplier. The Applicant expressly acknowledges that the Relevant Proportion shall be equal to the dollar value the portion of the product incorporated or transformed and the Applicant further acknowledges that any part payment (not exceeding the Relevant Proportion) received by the Applicant for such product or products is received as payment first of the Relevant Proportion.
Any discrepancies on the Goods purchased by the Applicant from the Supplier may only be claimed by the Applicant to the Supplier where notification of the proposed discrepancy of the Goods is received within fourteen (14) days of the date of delivery of the Goods to the Applicant and the Supplier has agreed in writing to accept the discrepancy of the Goods. Where the Applicant has signed the consignment on the Delivery of the Goods, the Goods are deemed to be received in full and no claims will be accepted. The Supplier will keep the record of the Credit for twelve (12) months from the date of Credit Claim issue and it is solemnly the Applicants responsibility to notify the Supplier on how the Credit will be applied.
All other Credit Claims should be received within fourteen (14) days of the date of the Adjustment Note with the copy of the Original customer Receipt and the copy of the Original Adjustment note. The Claim should be accommodated by The Supplier’s Credit Claim Form with all required details attached. Where the Store has failed to provide the Full information within the timeframe outlined the claim will be rejected.
Warranty Claims should be received within thirty (30) days of the date of the Customer Claim initiation with the Store with the copy of the Original Customer Receipt and the copy of the Original Adjustment Note. The Claim should be accommodated by The Supplier’s Warranty Claim Form with all the required details attached. Where the Store has failed to provide the Full information within the timeframe outlined the Supplier reserves the right to reject the claim.
5. MISCELLANEOUS PROVISIONS
(a) It is expressly agreed that any action, suit, dispute or proceedings arising from or in connection with the sale of goods pursuant to this Agreement or any matter between the parties hereto may be instituted, heard and determined in a court of competent Jurisdiction in the State of Victoria or such Other State of Australia nominated in writing by the Supplier and each party irrevocably submits to the jurisdiction of such court for the purpose of any such dispute, action, suit or proceedings.
(b) The Applicant hereby irrevocably authorizes the Supplier from time to time, in order to assess any application for credit, to obtain any information about the Applicant from any credit provider named in this application and also to obtain a credit report in respect of the Applicant from any credit agency and to provide any information contained on this credit application from and also details of the performance of the Applicant in compliance with the trading terms and conditions herein to other credit providers and credit agencies.
(c) The Applicant further authorizes the latter company to make such information available to other credit providers.
(d) In transit insurance incurred in respect of the Goods transported from the Supplier’s nominated warehouse are at the cost and liability of the Applicant and are not included in the invoiced price of the Goods.
(e) The words “Goods” and “Products” shall be deemed to refer to any goods obtained by the Applicant from the Supplier from time to time pursuant to this Agreement.
(f) The Applicant shall be liable for and shall promptly pay to the Supplier,
(i) any legal costs incurred by the Supplier on a solicitor/client basis
(ii) any court, bailiff costs and services fees incurred by the Supplier
(iii) any fees paid to a debt collector in respect of any action or court proceedings taken by or on behalf of the Supplier for the recovery of any monies due by the applicant to the Supplier pursuant to this Agreement. The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by the Supplier for reinforcement of obligations and recovery of monies due from the Customer to the Supplier.
(g) Service of any notice or document pursuant to this agreement may be affected in any manner prescribed by Section 86 Credit (Administration) Act 1984 as amended (Victoria) or any section or provision in substitution therefore.
(h) The Supplier Reserves the right to terminate this Credit Agreement at any time immediately upon the Applicant of written notice of termination without providing any reason therefore.