accept IA’s quotation in writing within thirty (30) days.
5. Delivery Of Goods
to be the Customer’s agent.
and the Customer.
(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and agree that IA (or IA’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable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.
12.1 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
(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
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;
- (f) the Customer shall not deal with the money of IA in any way which may be adverse to IA; and
- (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
- (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
- (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.
- 8.1 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.
- 8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
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
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
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.