Legal notice

Impreglon Australia Pty Ltd

ABN 24 158 070 510
67-77 Airds Road, Minto
NSW 2566
Australia

Tel: +61 2 9603 2388
Fax: +61 2 9603 5253
Email: info@impreglon.com.au
http://www.impreglon.com.au

 Terms & Conditions of Trade

1. Definitions

  1. 1.1  “IA” shall mean Impreglon Australia Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Impreglon Australia Pty Ltd.
  2. 1.2  “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by IA to the Customer.
  3. 1.3  “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
  4. 1.4  “Goods” shall mean Goods supplied by IA to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by IA to the Customer.
  5. 1.5  “Services” shall mean all Services supplied by IA to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
  6. 1.6  “Price” shall mean the price payable for the Goods as agreed between IA and the Customer in accordance with clause 4 of this contract.

2. The Competition and Consumer Act 2010 (“CCA”) and Fair Trading Acts (“FTA”)

  1. 2.1  Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re- enactment thereof), except to the extent permitted by those Acts where applicable.
  2. 2.2  Where the Customer buys Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.

3. Acceptance

  1. 3.1  Any instructions received by IA from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by IA shall constitute acceptance of the terms and conditions contained herein.
  2. 3.2  Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
  3. 3.3  Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of IA.
  4. 3.4  The Customer shall give IA not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by IA as a result of the Customer’s failure to comply with this clause.
  5. 3.5  Goods are supplied by IA only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

4. Price And Payment

  1. 4.1  At IA’s sole discretion the Price shall be either:
    (a) as indicated on invoices provided by IA to the Customer in respect of Goods supplied; or
    (b) IA’s quoted Price (subject to clause 4.2) which shall be binding upon IA provided that the Customer shall

accept IA’s quotation in writing within thirty (30) days.

  • 4.2  IA reserves the right to change the Price in the event of a variation to IA’s quotation.
  • 4.3  At IA’s sole discretion a deposit may be required.
  • 4.4  At IA’s sole discretion:(a) payment shall be due on delivery of the Goods; or
    (b) payment shall be due before delivery of the Goods; or
    (c) payment for approved Customers shall be made by instalments in accordance with IA’s payment schedule.
  • 4.5  Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
  • 4.6  Payment will be made by cash, or by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and IA.
  • 4.7  GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

 

5. Delivery Of Goods

  1. 5.1  At IA’s sole discretion delivery of the Goods shall take place when:
    (a) the Customer takes possession of the Goods at IA’s address; or
    (b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the

Goods are delivered by IA or IA’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed

to be the Customer’s agent.

  • 5.2  At IA’s sole discretion the costs of delivery are:(a) in addition to the Price; or(b) for the Customer’s account.
  • 5.3  The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tenderedfor delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then IA shall beentitled to charge a reasonable fee for redelivery.
  • 5.4  Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer forthe purposes of this agreement.
  • 5.5  The failure of IA to deliver shall not entitle either party to treat this contract as repudiated.
  • 5.6  IA shall not be liable for any loss or damage whatever due to failure by IA to deliver the Goods (or any of them)promptly or at all, where due to circumstances beyond the control of IA.

 

6. Risk

  1. 6.1  If IA retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
  2. 6.2  If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, IA is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by IA is sufficient evidence of IA’s rights to receive the insurance proceeds without the need for anyperson dealing with IA to make further enquiries.

7. Title

  1. 7.1  IA and Customer agree that ownership of the Goods shall not pass until:
    (a) the Customer has paid IA all amounts owing for the particular Goods; and
    (b) the Customer has met all other obligations due by the Customer to IA in respect of all contracts between IA

and the Customer.

  • 7.2  Receipt by IA of any form of payment other than cash shall not be deemed to be payment until that form ofpayment has been honoured, cleared or recognised and until then IA’s ownership or rights in respect of theGoods shall continue.
  • 7.3  It is further agreed that:
    1. (a)  where practicable the Goods shall be kept separate and identifiable until IA shall have received payment and all other obligations of the Customer are met; and
    2. (b)  until such time as ownership of the Goods shall pass from IA to the Customer IA may give notice in writing to the Customer to return the Goods or any of them to IA. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
    3. (c)  IA shall have the right of stopping the Goods in transit whether or not delivery has been made; and
    4. (d)  if the Customer fails to return the Goods to IA then IA or IA’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, wherethe Goods are situated and take possession of the Goods; and
    5. (e)  the Customer is only a bailee of the Goods and until such time as IA has received payment in full for the

 

(a) any money payable to IA becomes overdue, or in IA’s opinion the Customer will be unable to meet its payments as they fall due; or

(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

11. Security And Charge

11.1 Despite anything to the contrary contained herein or any other rights which IA may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to IA or IA’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that IA (or IA’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable

hereunder have been met.
(b) should IA elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer

and/or Guarantor shall indemnify IA from and against all IA’s costs and disbursements including legal costs

on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint IA or IA’s

nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 11.1.

12. Cancellation

12.1 IA may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice IA shall repay to the Customer any sums paid in respect of the Price. IA shall not be liable for any loss or damage whatever arising from such cancellation.

12.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by IA (including, but not limited to, any loss of profits) up to the time of cancellation.

13. Privacy Act 1988

13.1 The Customer and/or the Guarantor/s (herein referred to as the Customer) agree for IA to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by IA.

13.2 The Customer agrees that IA may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or

(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the

Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.

13.3 The Customer consents to IA being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

13.4 The Customer agrees that personal credit information provided may be used and retained by IA for the following purposes (and for other purposes as shall be agreed between the Customer and IA or required by law from time to time):
(a) the provision of Goods; and/or

(b) the marketing of Goods by IA, its agents or distributors; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision

of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the

Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the

Customer’s account in relation to the Goods.
13.5 IA may give information about the Customer to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Customer;
(b) allow the credit reporting agency to create or maintain a credit information file containing information about

the Customer.
13.6 The information given to the credit reporting agency may include:

(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);

(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that IA is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue

by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer

overdue in respect of any default that has been listed;
(f) information that, in the opinion of IA, the Customer has committed a serious credit infringement (that is,

fraudulently or shown an intention not to comply with the Customer’s credit obligations);
(g) advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured

more than once;
(h) that credit provided to the Customer by IA has been paid or otherwise discharged.

14. Personal Property Securities Act 2009 (“PPSA”)

14.1 In this clause:
(a) financing statement has the meaning given to it by the PPSA;
(b) financing change statement has the meaning given to it by the PPSA;
(c) security agreement means the security agreement under the PPSA created between the Customer and IA by

these terms and conditions; and
(d) security interest has the meaning given to it by the PPSA.

14.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions:

(a) constitute a security agreement for the purposes of the PPSA; and (b) create a security interest in:

(i) all Goods previously supplied by IA to the Customer (if any);

(ii) all Goods that will be supplied in the future by IA to the Customer. 14.3 The Customer undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which IA may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the

Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 14.3(a)(i) or 14.3(a)(ii);

(b) indemnify, and upon demand reimburse, IA for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including
the amount the Customer owes to IA for the Goods, on trust for IA; and IA;

  1. (f)  the Customer shall not deal with the money of IA in any way which may be adverse to IA; and
  2. (g)  the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goodswhile they remain the property of IA; and
  3. (h)  IA can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goodsmay not have passed to the Customer; and
  4. (i)  until such time that ownership in the Goods passes to the Customer, if the Goods are converted into otherproducts, the parties agree that IA will be the owner of the end products.

8. Defects

  1. 8.1  The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify IA of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford IA an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which IA has agreed in writing that the Customer is entitled to reject, IA’s liability is limited to either (at IA’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the CCA or the FTA of the relevant state or territories of Australia, and may therefore also be entitled to, either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
  2. 8.2  Goods will not be accepted for return other than in accordance with 8.1 above.

9. Warranty

9.1 To the extent permitted by statute, no warranty is given by IA as to the quality or suitability of the Goods for any purpose and any implied warranty, is expressly excluded. IA shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

10. Default & Consequences of Default

  1. 10.1  Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at IA’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
  2. 10.2  In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by IA.
  3. 10.3  If the Customer defaults in payment of any invoice when due, the Customer shall indemnify IA from and against all costs and disbursements incurred by IA in pursuing the debt including legal costs on a solicitor and own client basis and IA’s collection agency costs.
  4. 10.4  Without prejudice to any other remedies IA may have, if at any time the Customer is in breach of any obligation (including those relating to payment), IA may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. IA will not be liable to the Customer for any loss or damage the Customer suffers because IA has exercised its rights under this clause.
  5. 10.5  If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
  6. 10.6  Without prejudice to IA’s other remedies at law IA shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to IA shall, whether or not due for payment, become immediately payable in the event that:

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of IA; and

(e) immediately advise IA of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

14.4 IA and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

14.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

14.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
14.7 Unless otherwise agreed to in writing by IA, the Customer waives its right to receive a verification statement in

accordance with section 157 of the PPSA.
14.8 The Customer shall unconditionally ratify any actions taken by IA under clauses 14.3 to 14.5.

15. Unpaid IA’s Rights

15.1 Where the Customer has left any item with IA for repair, modification, exchange or for IA to perform any other Service in relation to the item and IA has not received or been tendered the whole of the Price, or the payment has been dishonoured, IA shall have:
(a) a lien on the item;

(b) the right to retain the item for the Price while IA is in possession of the item;

(c) a right to sell the item.
15.2 The lien of IA shall continue despite the commencement of proceedings, or judgment for the Price having been

obtained.

16. General

16.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2 If any provisions of these terms and conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.

16.3 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.

16.4 IA shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by IA of these terms and conditions.

16.5 In the event of any breach of this contract by IA the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

16.6 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by IA.

16.7 IA may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.8 The Customer agrees that IA may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which

IA notifies the Customer of such change.
16.9 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action,

fire, flood, storm or other event beyond the reasonable control of either party.
16.10 The failure by IA to enforce any provision of these terms and conditions shall not be treated as a waiver of that

provision, nor shall it affect IA’s right to subsequently enforce that provision.

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