The Supplier agrees to supply Goods and Services to the Customer on credit in accordance with the terms and conditions of this Agreement. Granting credit and entering into this Agreement does not obligate the Supplier to provide Goods and/or Services to the Customer on credit or up to the Credit Limit.
The Supplier may at its sole discretion and at any time by giving written notice with immediate effect to the Customer:
Reduce the Credit Limit, including reducing the Credit Limit to $0.00.
Suspend or freeze the Customer’s credit account with the Supplier.
Terminate this Agreement and discontinue providing Goods and/or Services on credit to the Customer.
Require payment for Goods and/or Services on or prior to delivery.
Cancel, pause or delay delivery of Goods and/or Services ordered by the Customer for such period of time as the debt owing by the Customer exceeds the Credit Limit.
All invoices rendered by the Supplier to the Customer must be paid within thirty (30) days from the date on which the invoice was rendered unless otherwise is expressly stated on the rendered invoice.
Where the Customer’s account is overdue:
The Supplier may charge interest accruing daily from the due date of the invoice provided in Clause 1.2 above to the date payment is received by the Supplier at the rate of 2% per month or at the maximum rate otherwise permitted by law.
The Customer indemnifies and will keep indemnified the Supplier against all reasonable expenses and costs (including but not limited to legal costs on a solicitor client basis and debt collection costs and commissions and other enforcement costs) incurred by the Supplier as a result of the Customer failing to pay invoices on time or otherwise defaulting.
The Supplier may (but is not required to) apply any part payments received may be applied firstly to the additional costs and expenses incurred, then secondly to interest accrued and then thirdly to the overdue invoices starting with the oldest.
Where the value of an order exceeds $10,000.00, the Supplier may, at its sole discretion, make its acceptance of that order conditional on completion of a further or updated credit assessment of the Customer. The Supplier will notify the Customer should a further or updated credit assessment of the Customer be required by the Supplier.
Pricing
Prices for Goods and/or Services are determined by the Supplier in accordance with its Standard Prices in effect as at the date the Customer’s order is accepted by the Supplier.
Unless expressly stated otherwise, all prices exclude GST.
The Parties acknowledge that pricing may change due to external factors outside the Supplier’s control. Where pricing for Goods and/or Services changes after an order is submitted by the Customer but before delivery of the Goods and/or Services, the Supplier must use all reasonable endeavours to notify the Customer of the price changes as soon as practicable after becoming aware of the changes.
Nothing in this Agreement prevents the Customer and Supplier from negotiating special pricing, for example, with respect to a high-volume order.
Where any quotation, acceptance, order or other document is required to be signed by or on behalf of the Supplier or the Customer, the Parties agree that the Parties may electronically or digitally sign that document in accordance with the provisions of the Electronic Communications Act 2000 (NSW) and/or the Corporations Act 2001 (Cth).
Supply and Delivery
As soon as practicable after receiving an order from the Customer, the Supplier will notify the Customer of any:
Goods which are out of stock and, if possible, an estimation of when the Goods are expected to become available for delivery.
Goods from deleted or discontinued lines and, if possible, suggested available alternatives.
Details of any Goods which are manufactured to order and an estimation on when those Goods are expected to be available for delivery.
Incorrect packet quantities.
Where applicable, any minimum order value.
Service fees.
Unless an order specifically states “Do Not Back Order”, any Goods which are out of stock will be automatically back ordered by the Supplier and the order will be processed when the Goods become available for delivery. The Supplier is not responsible or liable for any
Times quoted for delivery are estimates only. The Customer acknowledges that the Supplier cannot guarantee delivery times as deliver times may be impacted by factors outside the Supplier’s reasonable control. The Supplier will use reasonable endeavours to notify the Customer as soon as practicable after becoming aware of variations in the estimated time for delivery.
Unless otherwise agreed in writing, the Supplier will transport the Goods ordered by the Customer using the most economical route and carrier (which may be via a third party) in its reasonable opinion having regard to the nature of the Goods, the delivery address and the estimated time for delivery. Where the Customer requests a specific route or carrier and the Supplier accepts that request, the Customer is responsible for all additional transport and packaging costs incurred.
If the Customer requests that the delivery of Goods be staggered over different times or delivered to a different than the Customer’s address stated on this Agreement, then the Customer:
Is responsible for all additional delivery costs and expenses incurred by the Supplier.
Will be invoiced for the value of the whole order, including those Goods and/or Services yet to be supplied or delivered, with that invoice payable in accordance with Clause 1.
Where Goods are made available for the Customer’s collection, the Customer must collect the Goods within 5 Business Days (or within any other time expressly agreed by the Parties in writing) after receiving notice that the Goods are ready to collect.
Where the Customer fails to collect the Goods in accordance with Clause 3.5, the Supplier may charge storage fees of $100.00 per day for each additional day the Goods. The Supplier may require payment of their storage fees on or before collection of the Goods. The Parties agree that the storage fees are reasonable having regard to the nature of the Goods and the necessity for the Supplier to arrange continued unanticipated secure warehousing for the Goods resulting from the Customer’s late collection. Goods which have not been collected in accordance with Clause 3.5 are stored at the sole risk of the Customer.
The Goods are deemed delivered when:
On delivery to the Customer’s nominated address; or
On the Supplier giving the Customer notice that the Goods are ready for collection.
Security
Defined terms in this Clause 4 have the same meaning as defined by the PPSA.
This Agreement is a security agreement for the purposes of the PPSA.
The Parties acknowledge that the security provided in this Clause 4 is necessary and reasonable to protect the Supplier’s interests having regard to the Supplier agreeing to provide Goods and Services to the Customer on credit.
The Customer charges in favour of the Supplier, and grants to the Supplier a security interest in, all present and after acquired property of the Customer (including but not limited to real estate and personal property) as security for the Customer’s performance of all obligations under this Agreement.
The Customer acknowledges and agrees that the Supplier may:
Register and maintain an AllPAAP on the PPSR.
Lodge and maintain a caveat over any interest held by the Customer in real estate.
Title to the Goods supplied from time to time by the Supplier to the Customer only passes to the Customer on receipt of full payment for those Goods by the Supplier. Title remains with the Supplier until such time as full payment for those Goods is received by the Supplier.
The Customer expressly grants a PMSI in all Goods supplied from time to time by the Supplier to the Customer. The PMSI extends to any proceeds of sale of those Goods. The Customer acknowledges that the Supplier may register and maintain a PMSI on the PPSR. The Customer expressly consents to the registration of a PMSI extending to proceeds of sale over Goods on the PPSR by the Supplier.
The Customer must not, without the Supplier’s express prior written consent, enter into any other security agreement with any third party (including as part of a debtor financing or similar facility or arrangement) to the extent that the other security agreement permits that third party to have, perfect or to register on the PPSR any security interest over the Goods or any of the proceeds of sale of the Goods prior to perfection and registration of the Supplier’s PMSI. The Customer must immediately notify the Supplier of any competing security interest. Any breach of this clause constitutes a material breach of this Agreement entitling the Supplier to terminate this Agreement and demand immediate payment of all outstanding amounts and/or repossession of the Goods.
The Customer indemnifies, and undertakes to keep indemnified, the Supplier for all costs and expenses (including but not limited to legal costs on a solicitor client basis and registration fees) associated with:
The perfection of any Security Interest.
Registration, amendment, discharge, withdrawal or release of any Financing Statement registered by or on behalf of the Supplier with respect to the Customer or the Goods supplied to the Customer by the Supplier.
Enforcement or attempted enforcement of any Security Interest granted by the Customer to the Supplier under this Agreement (including but not limited to the costs of appointing a Receiver).
To the extent permitted by law, the Customer voluntarily and expressly waives its right to:
Receive notification or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Charge Statement relating to any Security Interest such as a AllPAAP or PMSI.
Receive notice of removal of an Accession under s 95 of the PPSA.
Receive a notice of intention to seize Collateral under s 123 of the PPSA.
Object to the purchase of any Collateral by the Supplier under s 129 of the PPSA.
Receive notice of disposal of Collateral under s 130 of the PPSA.
Receive statement of account where there is no disposal under s 132(4) of the PPSA.
To the extent permitted by law, s 130 to s 143 (inclusive) of the PPSA are expressly excluded from this Agreement.
The Customer hereby expressly and irrevocably authorises and invites the Supplier to enter onto any premises where Goods subject to any security interest registered on the PPSR are stored or held.
Passing of Risk
Risk for the Goods passes to the Customer immediately on the delivery of those Goods to the Customer (or as directed by the Customer). The Customer acknowledges that, despite the risk having passed to the Customer, the title to those Goods remains with the Supplier until full payment for those Goods is received by the Supplier.
The Customer holds those Goods as trustee for the Supplier and indemnifies the Supplier, and will keep the Supplier indemnified, against any loss or damage to those Goods held on trust, until such time as title passes to the Customer.
Where Goods are sold by the Customer to a third party, the proceeds of sale (or the book debt where Goods are sold by the Customer on credit) are held by the Customer as trustee for the Supplier until such time as title would have passed to the Customer had the Customer not sold the Goods to a third party.
Where Goods are repossessed by the Supplier (or a Receiver acting on behalf of the Supplier), risk passes back to the Supplier (or a Receiver acting on behalf of the Supplier) on the Supplier taking possession.
Appointment of a Receiver
If the Customer defaults under this Agreement, without prejudice to any other rights of the Supplier, the Supplier is hereby granted the right to appoint a Receiver over the Customer’s assets, including any Collateral (as defined by the PPSA) securing the Customer’s obligations under this Agreement, to enforce its security interests. The appointment of a Receiver is at the sole discretion of the Supplier and may occur without prior notice to the Customer, unless otherwise required by law.
The appointed Receiver will have all the powers conferred by law, including the power to collect, manage, and dispose of the assets of the Customer, and to apply the proceeds towards satisfaction of the Receivers costs and the Customer’s indebtedness to the Supplier.
The Customer acknowledges and agrees that any costs and expenses incurred by the Supplier in appointing and maintaining the Receiver shall be borne by the Customer and are recoverable from the Customer as a debt due and payable.
Defective, Damaged or Incomplete Goods
On delivery or collection of the Goods, the Customer must inspect the Goods and is deemed to have inspected the Goods on delivery or collection.
Where any defective Goods, lost Goods, incomplete order fulfillment, damaged Goods or any other complaint regarding the condition of the Goods, is identified by the Customer, the Customer must give the Supplier a written Defect Notice within fifteen (15) business days of delivery or collection of the Goods,
The Defect Notice must:
Include the invoice number to which the defective Goods relate.
The date on which the defective Goods were delivered or collected.
Include a description of the alleged defects.
Where possible, have attached photographs or other evidence of the defects.
Within fifteen (15) business days after receipt of the Defect Notice, the Supplier must notify the Customer of its acceptance or rejection of the Defect Notice.
Where the Defect Notice is accepted, the Supplier may at its sole discretion elect to:
Refund the value of the defective Goods.
Replace the defective Goods.
Credit the value of the defective Goods to the Customer’s account.
Where a Defect Notice is rejected, the Supplier must advise the basis for the rejection.
If required by the Supplier, the Customer must allow access to the Goods by the Supplier for inspection and verification of the defects.
Electroplated Finishes – The Supplier discloses, and the Customer acknowledges, that brass, bronze and other antique finishes have limitations and in time the protective lacquer may deteriorate either from exposure to weather, humidity, perspiration, extremes of climate, frequency of use or other factors, and:
Tarnishing or excessive wear and tear of these finishes is not a defect but a normal unavoidable process for such materials.
To maximize the life of these finishes, the care instructions provided with the Goods, including regular cleaning with appropriate non-abrasive products and avoiding exposure to harsh chemicals must be strictly followed.
These finishes cannot be guaranteed by the Supplier.
Goods containing these finishes cannot be repaired or replace under the Supplier’s warranty on account of tarnishing or wear of finishes.
The Supplier is not responsible for the damage caused to those metal finishes by acid or other solvents or chemicals.
Warranty and Limited Supplier’s Liability
The Supplier gives no warranties, either express or implied (including those warranties which may be implied by law) with respect to the Goods supplied by the Supplier to the Customer save for those warranties:
Implied by law which cannot be excluded or waived.
Those granted or guaranteed by the ACL.
Expressly agreed and granted by the Supplier in writing with respect to identified Goods.
Where a warranty applies to Goods supplied to the Customer by the Supplier, to the extent permitted by law, the Supplier’s liability under that warranty is limited to, and the Supplier may at its sole discretion acting reasonably elect either the:
Repair of the Goods.
Replacement of the Goods.
Replacement of the Goods with an equivalent substitute.
Payment of the reasonable costs of repairing the Goods.
Payment of the reasonable costs of replacing the Goods.
Payment of the reasonable costs of replacing the Goods with an equivalent substitute.
The Customer represents to the Supplier that it has relied on its own skill and judgment or alternatively, on the skill and judgment of a professional advisor or tradesperson engaged by the Customer. The Customer indemnifies and will keep indemnified the Supplier against any suit, claim, demand, loss or damage which the Customer may have had or may have in the future against the Supplier but for the terms of this Agreement.
The Supplier discloses that it is a supplier and not the manufacturer of the Goods. The Supplier is not a party to any manufacturer warranty with respect to any Goods supplied by the Supplier. The Customer acknowledges that it is recommended it familiarise itself with the terms and conditions of any applicable manufacturer warranties that may apply to Goods supplied by the Supplier.
Returning Non-Defective Goods and Cancellations
No Goods (whether defective or non-defective) may be returned to the Supplier without first obtaining the Supplier’s prior written authorisation.
The return of non-defective Goods that have been delivered or the cancellation of an order for Goods not yet delivered cannot be accepted where the Goods were specially ordered or customised for the Customer.
Where the Supplier grants prior written authorisation to return Goods which are not defective:
Any written authorisation to return non-defective Goods will include a nominated address for the Goods to be returned to.
All Goods must be returned in their original packaging (where possible) and in re-saleable condition.
The Customer is responsible for all transport costs to return the Goods to the Supplier’s nominated address.
The Customer is responsible for any damage occurring during transport of the Goods back to the Supplier and must pay for any Goods damaged whilst in the Customer’s possession or during return transport.
Risk passes back to the Supplier on delivery of the Goods at the Supplier’s nominated address.
The Supplier may charge a 15% service and processing fee which may be deducted from the amount to be refunded to the Customer following return of the Goods.
The Customer must reimburse the Supplier’s initial transport and delivery costs incurred by the Supplier to deliver the non-defective Goods to the Customer which may be deducted from any refund.
The Supplier will process the refund (less any deductable amounts in accordance with this Agreement) within 30 days after delivery of the returned Goods at the Supplier’s nominated address.
Where the Customer owes any amounts to the Supplier, any refund may be applied to any outstanding balance otherwise payable by the Customer to the Supplier.
Privacy
In order to assess the Customer’s Credit Application and to subsequently supply Goods and Services to the Customer on credit and enforce its rights, the Supplier is required to (and the Customer and Guarantor expressly consents for the Supplier to):
Obtain from a credit reporting agency a consumer or commercial credit report containing personal and financial information about the Customer, the Guarantors and directors or other officeholders of the Customer.
Regularly obtain and update from a credit reporting agency a consumer or commercial credit report containing personal and financial information about the Customer, the Guarantors and directors or other officeholders of the Customer.
Share the Customer’s, Guarantor’s Customer Director’s (and other officeholders of the Customer’s) identity and personal information provided in the Credit Application with credit reporting agencies.
Contact the trade references provided on the Credit Application.
In accordance with the Privacy Act 1988 (Cth), the Customer and each officeholder of the Customer signing this Agreement authorises the Supplier to contact and share personal and financial information about the Customer, the Guarantors and directors or other officeholders of the Customer with the trade references provided by the Customer on this Credit Application and with credit providers or creditors listed on any credit report obtained under Clause 10.1, including but not limited to information as to credit-worthiness, credit history, credit or financial standing and/or credit capacity or as otherwise permitted under the Privacy Act 1988 (Cth).
The Supplier will hold, use and disclose all personal and financial information about the Customer, the Guarantors and directors or other officeholders of the Customer in order to:
Assess the Customer’s Credit Application (as permitted by s 18L(4) of the Privacy Act 1988 (Cth)).
Assess the Guarantor’s Guarantee.
Assist the Customer and Guarantor avoid defaulting on their obligations.
Evaluate the Customer’s and Guarantor’s credit-worthiness.
Inform other credit providers or suppliers on credit and credit reporting agencies of a default by the Customer and/or Guarantor under this Agreement.
The Supplier discloses that it may continue to hold personal, credit and financial information about the Customer, the Guarantors and directors or other officeholders of the Customer for a period of up to 7 years following the last business transaction with the Customer or as otherwise permitted by law or required by law.
The Supplier will take all reasonable steps to ensure all personal and financial information provided to it under this Agreement is securely stored and maintained.
Independent Legal Advice
The Supplier and the Customer both warrant to each other that they have either:
Obtained independent legal advice with respect to their rights and obligations under this Agreement and the effect of this Agreement.
Had the opportunity to obtain independent legal advice with respect to their rights and obligations under this Agreement and the effect of this Agreement and understand that obtaining legal advice is recommended but have voluntarily elected not to do so.
The Supplier and Customer each acknowledge that the other party has relied on their warranty contained in Clause 9.1 above when entering into this Agreement and as an inducement to enter into this Agreement.
Force Majeure
Neither party is liable for any delay or failure to perform its obligations under this Agreement if such delay or failure arises from a Force Majeure Event.
The party affected by a Force Majeure Event must notify the other party in writing as soon as practicable, specifying the nature and extent of the Force Majeure Event and the impact on its ability to perform its obligations under this Agreement. The obligations of the affected party shall be suspended for the duration of the Force Majeure Event, provided that the affected party shall use its best endeavours to mitigate the effects of the Force Majeure Event and resume performance as soon as possible.
If the Force Majeure Event continues for a period exceeding 90 days, either party may terminate this Agreement by providing written notice to the other party. Such termination does not give rise to any liability or obligation to either party, except for any obligations that had accrued prior to the occurrence of the Force Majeure Event.
This Clause 12 does not apply to obligations of the Customer to pay for Goods and Services delivered or collected from the Supplier.
Jurisdiction
This Agreement is governed by the laws of New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales with a registry based in Sydney. The parties both waive any objection to venue or inconvenient forum.
Assignment by Customer
The Customer cannot assign or transfer its benefit, rights and obligations under this Agreement. The Customer acknowledges that should it sell or transfer its business; the new purchasing entity is required to submit its own credit application to the Supplier for assessment.
Any change in directorship, shareholding or control of the Customer is deemed an assignment of this Agreement.
The Customer acknowledges that this Clause 14 is reasonably required by the Supplier to protect its interest in circumstances where the Supplier is supplying Goods and Services on credit.
Assignment by Supplier
The Supplier may assign its benefit, rights and obligations under this Agreement by giving thirty (30) days prior written notice to the Customer.
Waiver and Amendment
This Agreement or any provision of this Agreement may only be amended or waived in writing signed by all parties.
No failure, omission or delay by a party to enforce its rights or exercise any remedy available to it under this Agreement amounts to or may be construed as a waiver of that right.
National Credit Code Excluded
The Customer warrants and represents to the Supplier that all Goods and Services supplied by the Supplier under this Agreement will be solely or predominantly used for business purposes only.
The Customer acknowledges that the Supplier has relied on and was induced by the warranty and representation at clause 15.1 when entering into this Agreement and supplying Goods and Services to the Customer on credit in accordance with this Agreement.
The National Credit Code does not apply to this Agreement.
Definitions and Interpretation
In this Agreement:
ACL means the Australian Consumer Law under the Competition and Consumer Act 2010 (Cth).
Agreement means this written document comprising of the Credit Application Form, Deed of Guarantee and Indemnity and Terms and Conditions.
AllPAAP means a security interest over all present and after acquired property as defined by the PPSA and registered (or to be registered) on the PPSR.
Collateral means any collateral as defined in the PPSA.
Credit means the credit extended by the Supplier to the Customer.
Credit Application Form means the form on page 1 of this Agreement.
Credit Limit means the credit limit stated in the Credit Application Form or otherwise maximum amount of credit the Supplier is willing to grant to the Customer from time to time.
Customer means the Customer named in the Credit Application Form.
Defect Notice means a written notice of any defective Goods, lost Goods, incomplete order fulfillment, Goods damaged in transit or any other complaint regarding the condition of the Goods identified by the Customer given to the Supplier in accordance with Clause 7.
Force Majeure Event includes, but is not limited to, acts of God, war, terrorism, civil commotion, riots, strikes, lockouts, labour disputes, fires, floods, storms, earthquakes, pandemics, government actions, pandemics, epidemics or any other event beyond the reasonable control of the affected party.
Goods means the hardware goods supplied by the Supplier to the Customer from time to time.
GST means the value added goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guarantor/s means the Guarantor/s named in the Credit Application Form and the Deed of Guarantee and Indemnity.
National Credit Code means the Consumer Credit Code under the National Consumer Credit Protection Act 2009 (Cth).
PMSI means a Purchase Money Security Interest as defined by s 14 of the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth) and the Personal Property Securities Regulation 2010 (Cth).
PPSR means the Personal Property Securities Register constituted and maintained under the PPSA.
Receiver means a Receiver appointed by the Supplier under Clause 6 and as defined in the PPSA and Corporations Act 2001 (Cth).
Services means the services performed by the Supplier for the Customer from time to time.
Supplier means Jomon Architectural Hardware Pty Limited ACN 084 941 266 of 32 Spencer Street Five Dock NSW 2046 and includes where applicable any director, secretary, officer, employee, independent contractor, representative or agent acting on behalf of or for the Supplier from time to time, and any related entity or associated entity within the meaning of the Corporations Act 2001 (NSW) and also includes any assignee or transferee thereof.
This written document constitutes the entire agreement between the Supplier, Customer and Guarantor/s concerning the supply of goods and services by the Supplier to the Customer at the request of the Guarantor/s, and supersedes all prior agreements, understandings, and representations.
It is both parties’ intention to fully comply with all statutory and regulatory obligations applying to them and with those which may apply to them in the future, including but not limited to statutory regimes relating to unfair contract terms and the ACL.
If any part of this Agreement is illegal, invalid, or unenforceable, it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from the contract and the remaining provisions will not be affected, prejudiced, or impaired by such severance.
Headings are for ease of reference and convenience only and do not form part of the substance of this Agreement. Headings are to be ignored when interpreting this Agreement.
The contra proferentem rule is expressly excluded from this Agreement. No ambiguous provision in this Agreement may be interpreted against the interests of the party who drafted that provision (or on whose behalf that provision was drafted).
Any reference to a corporate entity includes a natural person where applicable and vice versa. Any reference to one gender includes any gender where applicable and vice versa.
Any reference to legislation includes any regulations, rules or ordinances made thereunder, any amendments thereto and replacement legislation subsequently enacted.
