Builders

MONTHLY CREDIT ACCOUNTS TERMS OF TRADE

 

1. Definitions
The following words have the following meanings in these Terms and Conditions unless the contrary intention appears: "Event of Termination" means when the Purchaser: (a) is served with any originating process in any proceedings under the Bankruptcy Act 1966 or the winding-up provisions of the Corporations Act 2001 or similar or replacement legislation or has an Administrator, Provisional Liquidator, Receiver or Receiver and Manager appointed to it; or (b) commits a breach of these terms and fails to remedy such breach after being given seven (7) days written notice by Hardings to do so. "Hardings" means Hardings Hardware Pty Limited ABN 98 064 548 349. "PPSA" means the Personal Property Securities Act 2009. "Privacy Policy" means Hardings' written policy in relation to privacy. "Purchaser" means the other party or parties supplied with the Goods by Hardings. "Goods" means all goods or services agreed to be supplied by Hardings to the Purchaser.

 

2. General
2.1 Except as expressly provided in these Terms and Conditions, these Terms and Conditions constitute an exclusive statement of the agreement between Hardings and the Purchaser with respect to supply of the Goods, despite any provisions to a contrary effect in any of the Purchaser's order forms or other documents. These Terms and Conditions supersede all prior arrangements written or oral. 2.2 Hardings may change these Terms and Conditions at any time in writing but not so as to affect orders to the extent that delivery has been made. 2.3 The Purchaser's acceptance of these Terms and Conditions in relation to the supply of the Goods is signified by the making of an order for the Goods where the Purchaser has previously received a copy of these Terms and Conditions, whether such copy was contained in an invoice in relation to any previous supply of the Goods or otherwise. This does not exclude acceptance by other means, including singing a credit application of signing any like acknowledgement. 2.4 The supply of the Goods pursuant to these Terms and Conditions is to be governed and construed in accordance with the law in effect in Victoria and the parties accept the non-exclusive jurisdiction of the Courts of Victoria in relation to a

 

3. Price
3.1 Hardings may vary the price without notice. 3.2 Orders will be supplied at the price prevailing at the date of delivery, subject to variation referred to above. 3.3 In addition to the price, the Purchaser shall pay the GST payable thereon and the Invoice Total is inclusive of GST_

 

4. Payment
4.1 Payment will be on delivery unless otherwise agreed in writing. 4.2 Credit terms will only be available, at Hardings' absolute discretion, upon approval of a written application for this purpose. The application for credit will contain or annex such financial information and documents as Hardings may require. Hardings will treat this information in a confidential manner and in accordance with its Privacy Policy. As a condition of providing credit, Hardings may require the provision of personal guarantees or other forms of security. 4.3 If any payment in respect of the sale of Goods is not made in full within the agreed period, Hardings is entitled to: (a) terminate any agreement arising under these Terms and Conditions and any other contract for sale Hardings may have with the Purchaser; (b) refuse to make any further delivery of Goods; (c) demand and receive immediate payment of any invoice in respect of an agreement arising under these Terms and Conditions whether payment is then due or not; and (d) recover possession of all Goods to which it has retained title under clause 8, in which case Hardings will credit the Purchaser with any part of the price paid by the Purchaser to Hardings in respect of those Goods. 4.4 All losses, expenses and costs, including legal fees on an indemnity basis, consequent upon the Purchaser's failure to pay on the due date, are recoverable from the Purchaser by Hardings. 4.5 Interest will be charged on overdue accounts at a rate equivalent to the interest rate prescribed by section 100 of the Civil Procedure Act 2005 (NSW), until payment of the debt plus all costs, charges and expenses which may be incurred by Hardings are recovered. 4.6 Payment of any amount by the Purchaser must be treated as being received in the following order: (a) First, in relation to obligations that are not secured ("secured in this clause means secured under the PPSA), in the order in which those obligations were incurred; (b) Second, in relation to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred; then, (c) Third, in relation to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.

 

5. Security for Payment
5.1 The Purchaser as beneficial owner hereby charges in favour of Hardings (and where there is more than one person trading together as the Purchaser, jointly and severally) all freehold and leasehold interests in land which the Purchaser now has or may acquire with the payment of all money which may become owing to Hardings by the Purchaser. 5.2 The Purchaser further acknowledges that Hardings is entitled to register a caveat to protect its interest under such charge.

 

6. Orders
6.1 All orders shall be placed by telephone, facsimile or email. 6.2 Hardings shall be under no obligation to accept the whole or part of any order, unless otherwise agreed.

 

7. Deliveries
7.1 Unless otherwise agreed, Hardings will not bear the costs of delivery of the Goods. 7.2 Hardings may supply the Goods through any related or associated corporation. Delivery may be made by Hardings or its contractors or agents. 7.3 The Purchaser shall provide secure and suitable off-loading facilities at the premises so as to facilitate the safe and timely off-loading of the Goods. 7.4 Hardings shall not be liable for any loss or damage, including consequential loss, suffered by the Purchaser arising from or related to any late delivery or failure to make delivery of an order whether in whole or in part and whether there exists a breach of contract or negligence or breach of any other obligation whatsoever.

 

8. Risk and title
28.1 The Goods shall be at the Purchaser's risk from the moment of delivery. 8.2 Property in and ownership of the Goods remains with Hardings and will not pass to the Purchaser until: (a) those goods have been paid for in full; and (b) all other Goods have been paid for in full; and (c) all other debts (including interest) owing to Hardings from the Purchaser on any account whatsoever have been paid for in full; and (d) all cheques and other negotiable instruments relating to payment have been cleared. 8,3 The Purchaser acknowledges that until such time as the property in and ownership of Goods passes to the Purchaser in accordance with clause 8.2, the Purchaser is in possession of the Goods for and on behalf of Hardings as a fiduciary bailee and agent. Subject to clause 8.5, the Purchaser is authorised to sell or use the Goods on its own account in the ordinary course of its ordinary business. The Purchaser must keep a complete record of all such sales or use of Goods. 8.4 The Purchaser upon taking delivery of Goods must, whenever practical, keep the Goods identifiably separate from other goods stocked, held or sold on the Purchaser's premises to enable the Goods to be identified. Hardings, by giving 'I day's notice to the Purchaser, is entitled to enter the Purchaser's premises for the purpose of inspecting the Goods. 8.5 The authority of the Purchaser to sell or use the Goods in the ordinary course of its ordinary business is revoke from the earlier of: (a) the happening of an Event of Termination; or (b) the Purchaser receiving notification from Hardings that such authority is revoked. 8.6 Hardings may revoke its authority pursuant to clause 8.3 at any time in its absolute and unfettered discretion and is not required to give a reason for such notice of revocation. 87 If the Purchaser resells or uses the Goods before ownership of the Goods has passed to the Purchaser, the proceeds of such sale or use will be received and held by the Purchaser (in whatever form) in trust for both the Purchaser and Hardings. Hardingss interest as beneficiary under that trust shall be that portion of the proceeds which does not exceed the Purchaser's total indebtedness to Hardings. The balance of the proceeds (if any) will be the Purchaser's beneficial interest under that trust. 8.8 If the Purchaser uses the Goods in manufacturing or production and sells the finished product in the ordinary course of business (which it is authorised to do unless otherwise notified in writing) the Purchaser must hold that part of the proceeds of the finished product relating to the Goods in a separate account in trust for Hardings. That part will be taken to be of equal value to the amount owing by the Purchaser to Hardings at the time of receipt of the proceeds. 8.9 Upon the happening of an Event of Termination, an irrevocable licence by the Purchaser to Hardings to immediately enter the Purchaser's premises (which the Purchaser hereby grants to Hardings) will be exercisable, which licence to enter permits Hardings to immediately enter the Purchaser's premises and repossess and remove all Goods on the premises. The Purchaser consents to such actions and agrees that Hardings will not be liable for any Loss (including but not limited to negligence on the part of Hardings) suffered by the Purchaser as a result of Hardings taking such action. 8.10 Hardings and the Purchaser agree that these Terms and Conditions are not intended to create a charge over Goods. To the extent that these Terms and Conditions are construed as creating a charge, the offending provisions will be deleted from these Terms and Conditions.

 

9. Warranties, Guarantees and Conditions.
9.1 Al! implied guarantees, warranties and conditions are excluded to the maximum extent permitted by law. 9.2 To the maximum extent permitted by law, Hardings is not liable for: (a) any loss or damage to the Goods resulting from any action or omission on the part of Hardings, or the employees, contractors or agents of Hardings; or (b) any special, consequential, direct or indirect loss and damage incurred by the Purchaser. 9.3 The Purchaser shall examine the Goods after delivery and immediately inform Hardings of any alleged defect in the Goods. To the maximum extent permitted by law, Hardings shall have no liability to the Purchaser for any defect that visual examination would ordinarily reveal unless Hardings receives written notification within two (2) business days from the date of delivery. 9.4 If a defect exists in the Goods and that defect occurred before delivery, Hardings will replace those Goods free of charge upon the Purchaser returning the defective Goods. 9.5 To the maximum extent permitted by law, Clause 9.4 constitutes the Purchaser's sole remedy in the respect of the supply of defective Goods. 9.6 In the event of a breach of an implied guarantee, condition or warranty which cannot by law be excluded or modified, including any guarantee, condition or warranty implied by the Trade Practices Act 1974 or the Competition and Consumer Act 2010, Hardings liability shall at Hardingsl option be limited to: (a) the repair or replacement of the Goods or the supply of equivalent Goods; or (b) the cost of such repair, replacement or supply.

 

10. Termination
10.1 Hardings may in addition to any other course of action available to it, elect to terminate any agreement made pursuant to these Terms and Conditions by notice in writing to the Purchaser if an Event of Termination occurs. 102 On termination all invoices rendered by Hardings are payable immediately.

 

11. Purchasers Warranties
The Purchaser warrants that: (a) the Purchaser is a party to a contract for sale of the Goods as a principal in its own right. If the Purchaser acts as agent or trustee of a trust the Purchaser agrees to inform Hardings in writing of the details of this relationship. (b) any financial information Hardings may require the Purchaser to give is true and accurate and the Purchaser will keep Hardings informed of any material adverse change. (c) the Purchaser will not make any representations or claims about the Goods to persons to whom it sells the Goods which are false and misleading. (d) the Purchaser will comply with all legislation and hold all requisite Federal, State and/or Local Government permits and/or licences to allow the Purchaser to purchase and sell the Goods and, where applicable, to warehouse, transport and distribute the Goods and agrees to provide Hardings, at Hardings' request, with copies of appropriate permits and licences_ (e) The Purchaser shall comply with all laws and regulations applicable to the sale of the Goods through its outlets and their distribution, promotion and sale therein. (f) The Purchaser shall advise Hardings forthwith if it ceases trading or if it commences to trade through a different entity of if there is a material change in its ownership or control.

 

12. Security Interest Under the PPSA
12.1 The Purchaser agrees that: (a) each order accepted by Hardings, being an order accepted under these Terms and Conditions, creates a registrable security interest under the PPSA in any Goods supplied under it; (b) The Purchaser acknowledges the right of Hardings to register a financing statement under the PPSA with respect to the security interest created by these Terms and Conditions; (c) if Hardings registers a security interest under the PPSA, Hardings may exercise any or all remedies afforded to Hardings as a secured party under it without prejudice to any other rights or remedies arising out of a breach by the Purchaser of any agreement with Hardings; and (d) The Goods are collateral for the purposes of the PPSA. 12.2 The Purchaser waives any right the Purchaser has under the PPSA to receive notice in relation to registration events. 12.3 The Purchaser and Hardings agree that neither will disclose information of the kind specified in Section 275 (1) of the PPSA. 12.4 At the election of Hardings to be exercised at any time in its absolute discretion, any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.

 

13. Severance
Should any part of these Terms and Conditions be held to be void or unlawful, these Terms and Conditions are to be read and enforced as if the void or unlawful provisions had been deleted