1.1 In these terms and conditions:
(a) Account means the aggregate of all monies owing to Us by You for Goods supplied and/or Services provided to You.
(b) ACL means the Australian Consumer Law contained in Schedule 2 of the CCA as amended, re-enacted or replaced, and includes any subordinate legislation.
(c) CCA means the Competition and Consumer Act 2010 (Cth) as amended, re-enacted or replaced, and includes any subordinate legislation.
(d) Claim means any claim, action, proceeding, investigation or prosecution.
(e) Consumer and Major Failure have the same meaning as defined in the CCA.
(f) Contract means the agreement for the supply of Goods and/or provision of Services by Us to You created pursuant to these terms and conditions.
(g) Delivery Date means:
(h) Event of Default means any of the situations so described in clause 11.1.
(i) FTA means the Fair Trading Act 1989 (Qld) as amended, re-enacted or replaced and includes any related or subordinate legislation.
(j) Financing statement, financing change statement, security agreementand security interest have the meanings given to those terms by the PPSA.
(k) Goods means the products sold by Us to You, or any goods made available made available by Us for sale to You, pursuant to these terms and conditions.
(l) GST means Goods and Services Tax as determined in accordance with the A New Tax System (Goods and Services) Act 1999 (Cth).
(m) Job Site means the place for delivery of any Goods and/or provision of any Services, other than Our premises.
(n) Loss means any damage, loss, liability, cost, charge, expense, outgoing or payment including under or in respect of any action or Claim.
(o) PPS Register means the Personal Property Securities Register established under the PPSA.
(p) PPSA means the Personal Property Securities Act 2009 (Cth) as amended, re-enacted or replaced, and includes any related or subordinate legislation.
(q) Price means the amount determined in accordance with clause 3.
(r) Services means any service of whatever nature provided to You by Us.
(s) Spoiled Goods means any Goods that have:
(t) Us, Our, and We mean Grevillia Ag Pty. Limited ACN 083 323 817 trading as Grevillia Ag and any assigns, or authorised related entities.
(u) Variation of Contract means any variation whatsoever to these terms and conditions or the Contract including, without limitation, variation to:
(v) You, and Your mean the person or entity that is purchasing the Goods and/or Services from Us or any employee, agent or representative of that person or entity.
2.0 ACCEPTANCE OF THESE TERMS AND CONDITIONS
(a) Any request received by Us from You for the supply of Goods and/or provision of Services shall constitute Your acceptance of these terms and conditions (as amended from time to time).
(b) Upon acceptance of these terms and conditions, these terms and conditions are irrevocable and can only be amended, terminated or not complied with in accordance with these terms and conditions and/or with Our written consent.
(c) Our agents or representatives are not authorised to make any representations, statements, conditions or agreements on Our behalf that are not authorised to be made.
(d) Where the quantity, description, date, time and place of delivery of Goods or provision of Services is indicated on Our invoice or delivery docket this shall be conclusive evidence of such quantity, description, Delivery Date and place of delivery.
(a) At Our sole discretion, the Price shall be either:
(b) Our Quoted Price shall be binding unless You raise objection to the Quoted Price within two (2) Business Days of the date on which We provided the Quoted Price.
(c) Any Price which is quoted specifically for You is valid for 30 days after the date that the quote is provided to You.
(d) 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.
(e) All prices of Goods and/or Services appearing in any brochures, letters, price lists, data sheets or other documents of Ours or provided by Us are subject to change without notice.
(f) The Price does not include any freight costs or insurance costs, unless specifically stated.
4.0 TERMS OF PAYMENT
4.1 Payments generally
(a) On or after the Delivery Date, We will issue You an invoice in respect of the supply of Goods and/or provision of Services (Invoice).
(b) All payments must be made free of any set-off or counterclaim and without deduction or withholding whatsoever.
(c) We reserve the right to charge a fee on any payment that attracts any transaction fee for Us.
(d) Payment shall not be deemed to have been made until We have received the cleared funds.
(e) You must make any complaints as to incorrect charges or non-delivery of Goods within 14 days of the Delivery Date. If You fail to make such a complaint, You shall be deemed to have accepted that the Goods and Services have been supplied correctly and that Your Account is correct.
(f) You charge in Our favour all of Your estate and interest in all of Your present and after-acquired property with the amount of Your indebtedness under these terms and conditions until discharged in full.
4.2 Payment method
Unless otherwise provided by these terms and conditions, payment of the Invoice must be made by:
(c) bank cheque;
(d) depositing cleared funds into Our nominated bank account;
(e) credit card,
or any other method agreed between You and Us in writing.
5.0 PAYMENT WHERE NO CREDIT AGREEMENT
(a) If We have not agreed to provide credit to You, payment of an Invoice is due immediately on issue of the Invoice by cash, credit card or by depositing cleared funds into Our nominated bank account.
(b) Goods referred to in an Invoice for which there is no credit will not be delivered until payment is received.
6.0 PAYMENT WHERE CREDIT AGREEMENT
(a) Where We have agreed to provide credit to You, payment of all monies owed to Us pursuant to that credit agreement must be made within 30 days after the date of the end of the month in which the Invoice was provided to You.
(b) Payment must be made in accordance with clause 4.2.
(c) Notwithstanding that We have agreed to provide and/or have provided credit to You, We, in Our absolute discretion, may discontinue or suspend Our provision of credit to You and require immediate payment of the Account.
(d) If any portion of the Account should become overdue, then the full balance of the Account will become due and payable on demand.
Any amount that You owe Us that is not paid when due will incur interest at 9% per annum from the date that payment was due until payment is received in full. Interest will be calculated daily on the basis of a year of 365 days and will not be capitalised.
This clause 8 applies if We have agreed to supply You Goods on a consignment basis (Consignment).
8.1 Consignment terms
(a) You agree:
(b) We shall issue You with an invoice based upon the information You provide Us in the consignment stock form (Consignment Invoice). The Consignment Invoice must be paid within 30 days after the end of the month in which the sale of the Goods held on Consignment occurs.
(c) Payment must be made in accordance with clause 4.2.
(d) If any Goods become damaged or Loss occurs in respect of the Goods, You must immediately notify Us by providing full details of the damage or Loss. We may, in Our discretion, either accept return of the damaged Goods or issue You with an invoice which is payable within 30 days after the end of the month in which the damage or Loss to, or in respect of, the Goods held on Consignment occurs.
8.2 Return of Consignment Goods
(a) So long as the Goods are not Spoiled Goods, You may elect to return or retain and pay for any Goods that You hold on Consignment if the Goods have not been sold or used within six months of the Delivery Date, or any other period as notified by Us.
(b) If You do not make an election to return or retain and pay for the Goods under clause 8.2(a) within the 6 month period from the Delivery Date, You shall be deemed to have elected to retain and pay for the Goods.
(c) Upon Our request, You must return any Goods You hold on Consignment within seven days of the date of such a request.
(d) If You do not comply with a request made under clause 8.2(c), You are deemed to have elected to retain and pay for the Goods. We will issue You an invoice for the Goods and, subject to Us agreeing to provide You credit, payment for the Goods must be made within 30 days of the date of the invoice.
(e) You may not subsequently return any Goods that You have elected to retain and pay for, or have been deemed to have elected to retain and pay for.
(f) We will not accept the return of any Goods that are Spoiled Goods. You must pay for any Goods that may be characterised as Spoiled Goods.
(g) We will issue You an invoice in respect of any Spoiled Goods and/or any Goods which You have elected, or have been deemed to have elected, to retain and pay for.
(h) Subject to Us agreeing to provide You credit, any invoice issued to You pursuant to clause 8.2(g) must be paid within 30 days of the date of the invoice.
(i) Payments made under this clause must comply with the requirements of clause 4.2.
(j) You are liable for all transportation costs for any Goods returned pursuant to this clause 8.2.
(a) Any Delivery Date is approximate only. We are not responsible for any Loss caused by any delay in delivery and You cannot make any Claim for any Loss caused by any delay in delivery.
(b) We reserve the right to deliver Goods by instalments and each instalment shall be deemed to be sold under a separate Contract.
(c) Our non-delivery of an instalment of Goods in accordance with clause 9(b) does not repudiate or invalidate the Contract and does not entitle You to reject the Goods.
(d) Delivery of Goods shall be at Our premises as advised from time to time, during normal business hours, except where:
(e) The Job Site shall reasonably adjoin a properly constructed roadway and be easily accessible without special equipment.
(f) Unloading of Goods at the Job Site shall be Your responsibility and at Your cost, and must be done within a reasonable time.
(g) If You are unable to comply with clause 9(f), We reserve the right to unload the Goods at the Job Site at Your cost.
(h) We are not responsible or liable for any Claims for damage, Loss, expenses, costs or any legal proceedings resulting from any exercise of Our right under clause 9(g).
(i) You give permission to Us or Our agent to enter Your property and the Job Site to carry out any activities contemplated by or required under, this clause 9.
10.0 CHANGES TO OR CANCELLATION OF CONTRACT
(a) Where any Variation of Contract is requested by You and agreed to by Us, or You cancel a Contract, You are liable for any costs and expenses incurred by Us for any:
in respect of the Contract in question, unless We, in Our sole discretion, otherwise agree in writing.
(b) We are not responsible for delays in the delivery of Goods and/or provision of Services which may occur as a result of any Variation.
11.1 Events of Default
If any one or more of the following occur, an Event of Default at Our option will have occurred. A determination by Us in Our absolute discretion that any one or more has occurred will be final and binding on You. You must promptly inform Us in writing upon the happening of any of the events described in this clause.
(a) You fail to immediately return any Goods You hold on Consignment upon Our request.
(b) You fail to respond to any written notice or request of Ours within a period of 14 days.
(c) You have not made payment(s) in accordance with these terms and conditions, or have breached these terms and conditions in any way.
(d) Any indebtedness or obligation of You to any person including Us is not paid, met, or satisfied when due or becomes due and payable before its specified maturity or any creditor of Yours becomes entitled to declare any indebtedness of Yours due or You default under any charge or security in favour of any person.
(e) A receiver, receiver and manager, controller, administrator, liquidator, provisional liquidator, trustee, inspector, official manager or similar person is appointed to, or exists in relation to, You or Your undertaking or any part of Your undertaking.
(f) You stop payment or, without Our prior written consent, cease or threaten to cease to carry on Your business or a material part of Your business.
(g) You, being an individual, die, or are made or declared bankrupt, become incapable of managing Your own affairs, or are jailed.
(h) Where You are not a person, there is any change in Your ownership or control without Our prior written consent.
(i) An application for winding up, or similar process, is presented in respect of You, or an order is made or any effective resolution is passed for Your winding up.
(j) Proceedings are initiated with a view to obtaining an order for Your winding up or similar process, or any shareholder or director either calls or threatens to call any meeting for the purpose of considering or passing any resolution for Your winding up or similar process.
(k) Any action is initiated by any competent authority with a view to striking Your name off any register of companies.
(l) Where Your shares are at any time listed on any stock exchange, the listing is suspended or revoked and the suspension or revocation remains in force for a period greater than 14 days.
(m) Any distress or execution is levied or enforced against any of Your assets or property for an amount in excess of $50,000.
(n) You, or any person on Your behalf, breach(s) any undertaking at any time given to the Us or Our solicitors or any condition imposed by Us in agreeing to any matter or thing.
(o) You are unable to pay Your debts as they fall due or are unable to certify that You are able to pay Your debts as they fall due, commence negotiations with any one or more of Your creditors with a view to the general readjustment or rescheduling of Your indebtedness, or enter or propose to enter into any arrangement or composition with Your creditors.
(p) In Our opinion, there is a material adverse change in Your financial condition.
(q) You alter, vary, or modify Your constitution without Our prior written consent.
(r) A person is appointed to investigate all or any part of Your affairs.
(s) You commit an offence under the Corporations Act.
(t) You do any of the things contemplated by Part 2B.7 (change of status), Part 2J.2 (self-acquisition and control of shares), or Part 2J.3 (financial assistance in respect of shares) of the Corporations Act, or vary in any way the rights or obligations attached to any of Your issued shares without Our prior written consent.
(u) Any representation, warranty, reply to requisition, or any financial or other information provided to Us in connection with the Contract is or becomes untrue, false, or misleading in a material respect.
(v) All or any part of these terms and conditions becomes void, illegal, invalid, unenforceable, or of limited or of reduced force effect or value.
11.2 Rights on Default
Without limiting the operation of clause 16, if an Event of Default occurs, at Our discretion We may:
(a) refuse to deliver the Goods required by with the Contract, unless the Goods have been paid for in full;
(b) refuse to provide any Services required by with the Contract, unless the Services have been paid for in full;
(c) repossess any Goods from Your premises which have not been paid for in full;
(d) enforce or act in accordance with any security interest You have granted Us and/or security agreement You have entered into with Us; and
(e) where applicable, retain any monies held on Your Account to pay for any outstanding debts You owe Us.
(a) For Goods not provided on Consignment, unless otherwise required by the ACL or other binding legislation, We have the discretion to accept for credit, return of Goods subject to this clause and provided that:
(b) You acknowledge that the credit will not include:
which must be borne by You.
(c) The Price of the Goods that are returned by You and accepted by Us shall be, at Our discretion, credited by Us to You or to Your Account.
(d) You must pay for the costs of re-delivery of Goods returned to Us, including any handling fee that We may charge in Our discretion, before We will accept the return of the Goods.
(e) We may, in Our sole discretion, charge a restocking fee or handling fee when Goods are returned by You under the provisions of this clause 12.
(a) Unless We otherwise agree in writing, the risk in relation to the Goods passes to You immediately upon the Goods leaving Our premises, or such other place as agreed in accordance with these terms and conditions.
(b) You must take out and maintain an insurance policy effect sufficient to cover any damage or Loss that may occur to the Goods whilst the Goods are:
(c) For the avoidance of doubt, We take no responsibility or risk for any Goods once those Goods have left Our premises.
(d) If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to You, then We are entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Us is sufficient evidence of Our rights to receive the insurance proceeds without the need for any person dealing with Us to make further enquiries.
14.0 RETENTION OF TITLE
(a) The title of all Goods supplied to You by Us remains with Us until payment for the Goods is received in full from You.
(b) All Goods supplied by Us must be kept separate from other goods received by You and marked as owned by “Grevillia Ag” until payment is made in full.
(c) Any monies received for the sale of the Goods must be held for the benefit of Us and paid to Us until the Goods are paid for in full.
(d) If You fail to pay Your Account when required, then We or Our authorised agent may enter the premises where the Goods are located and seize those Goods and, at Our discretion, sell the Goods to recover the amount of the debt owing by You.
(e) The retention of title arrangement described in this clause 14 constitutes the grant of a purchase money security interest by You in Our favour in respect of all present and after-acquired Goods supplied to You by Us.
You appoint Us as Your duly constituted attorney from time to time to:
(a) do such acts; and
(b) execute in Your name such documents which in Our opinion (acting reasonably) are necessary to give effect to any right, power or remedy conferred on Us by these terms and conditions or the PPSA;
(c) register any security arising in Our favour under these terms and conditions or granted by You to Us under these terms and conditions; and
(d) to give effect to the matters contemplated by these terms and conditions, even though You may not have defaulted in carrying out Your obligations under these terms and conditions.
16.0 PERSONAL PROPERTY SECURITIES
(a) You acknowledge and agree that these terms and conditions:
(a) all Goods previously supplied by Us to You (if any);
(b) all Goods that will be supplied in the future by Us to You;
(c) the proceeds of sale of all Goods (whether already supplied or to be supplied) by You; and
(d) all Your present and after acquired property,
to secure payment of all monies (including, but not limited to, the Price payable for the Goods supplied or Services provided, and any interest and/or other monies unpaid) owing by You to Us from time to time under these terms and conditions and under any other agreement or arrangement between You and Us.
(b) You undertake to:
(a) register a financing statement or financing change statement in relation to a security interest on the PPS Register and otherwise do all things necessary and required by Us to ensure that any security interest registered by Us is a perfected security interest under the PPSA;
(b) register any document on any register reasonably necessary to secure Our interest under these terms and conditions;
(c) register any other document required to be registered under the PPSA; or
(d) correct a defect in a statement referred to in clauses 16(b)(i)(A), (B) or (C);
(c) You and Us agree that sections 96 and 125 of the PPSA do not apply to the security interest created by these terms and conditions.
(d) You hereby waive Your rights to receive notices, information or statements (as the case may be) under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA and Your rights as a grantor and/or a customer under sections 142 and 143 of the PPSA.
(e) Unless otherwise agreed to in writing by Us, You waive Your right to receive a verification statement in accordance with section 157 of the PPSA.
(f) You unconditionally ratify any actions taken by Us under this clause 16.
(g) The provisions of this clause 16 survive termination of the Contract and/or these terms and conditions or any other agreement between Us and You for the sale of Goods.
17.0 CONSUMER GUARANTEES & NO WARRANTY
17.1 For Consumers
Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a Major Failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
17.2 Limited Guarantee
(a) The Goods are guaranteed to the extent required by the ACL for the time period required by ACL.
(b) Nothing in these terms and conditions is intended to have the effect of contracting out of any applicable provisions of the CCA (including the ACL) or the FTA, except to the extent permitted by those Acts as applicable.
(c) Where any failure occurs that is not a Major Failure, this warranty covers only the cost of repair or replacement of the product or part thereof, the decision of which remains solely at Our discretion.
(d) Goods presented for repair may be replaced by refurbished Goods of the same type rather than being repaired. Refurbished parts may be used to repair the Goods.
(e) This warranty does not cover the cost of removal, installation, or any transport costs relating to a Claim, which must be borne by You, unless otherwise provided by the CCA (including the ACL) or the FTA.
17.3 Process for claiming warranty
(a) Any Goods considered to be defective must be returned to Us for inspection within 7 days of the date on which You received the Goods and must be accompanied by a document containing information regarding details of Your claim under this clause 17.
(b) All Claims must be accompanied by the original Invoice and/or delivery docket.
18.0 INTELLECTUAL PROPERTY
(a) Where We have designed Goods for You, then the copyright and other intellectual property rights in those designs and drawings shall remain vested in Us, and shall only be used by You for the purpose as agreed with Us.
(b) Where any designs or specifications have been supplied by You for manufacture by Us, then You warrant that the use of those designs or specifications for the manufacture, proceeding, assembly or supply of the Goods shall not infringe the rights of any third party.
(c) You indemnify Us against any action, Losses, costs or Claims arising from an infringement of any third party intellectual property rights from the use of any designs or specifications provided by You in accordance with clause 18(b).
(a) We reserve the right to review, alter and/or terminate these terms and conditions without notice.
(b) We reserve the right to review, alter and/or terminate the Contract.
(c) The information contained in the documents on Our website should be considered as a guide only and We take no responsibility for any errors or omissions of any nature.
(d) The contents of Our, brochures, letters, price-lists, data sheets, website or other documents are subject to change without notice at Our sole discretion.
(e) With the exception of products covered by consumer guarantees as mandated by the ACL, any product distributed by Us, but not manufactured by Us will be limited to the product manufacturer’s specific warranties.
(f) Certain products and their relevant trademarks depicted on Our website have been protected under trademark, design and patent legislation. Any infringements of product trademark, design or patent will be acted upon.
(g) We shall be under no liability whatsoever to You for any indirect and/or consequential Loss and/or expense (including loss of profit) suffered by You arising out of Our breach of these terms and conditions.
20.0 ERRORS AND OMISSIONS
(a) Whilst every care has been taken to ensure that accuracy of Our quotations, brochures, letters, price-lists, data sheets, website or other documents, no liability will be accepted for any errors, omissions or inaccuracies that may occur, errors and omissions excepted.
(b) For the avoidance of doubt, the Price is subject to change without notice.
We reserve the right to review these terms and conditions at any time from time to time. If, following any such review, there is to be any change, it will take effect from the date on which We make such change.
22.0 TIME IS OF THE ESSENCE
Time for payment of the Account is of the essence in accordance with these terms and conditions.
23.0 FORCE MAJEURE
We shall not be liable for any failure or delay to supply Goods and/or provide Services due to a cause beyond Our control including, but not limited to, acts of God, strikes, lock-outs or other industrial disturbances, fire, flood, explosion, civil riot, and government interference.
These terms and conditions are governed by the law in effect in the state of Queensland, Australia and, where applicable, the Commonwealth of Australia. We and You irrevocably submit to the non-exclusive jurisdiction of the courts in Queensland and/or the Commonwealth of Australia.
25.0 PRIVACY ACT 1988
(a) You authorise Us to obtain a credit report from a credit-reporting agency containing credit information about You in relation to credit provided by Us.
(b) To the maximum extent permitted by law, You authorise Us to exchange information about You with credit providers named in any credit application with Us and credit providers that may be named in a consumer credit report issued by a reporting agency for the following purposes:
(c) You authorise Us to give personal or commercial information about You to a credit reporting agency for the following purpose:
(a) This clause 26 applies to all information in whatever form that relates to Us, that has been disclosed to You or which You have accessed in the course of Us supplying Goods or providing Services to You.
(b) Confidential Information does not include information, which You can establish (by written record):
(c) You must ensure that all of Your agents, employees or any other such personnel comply with the obligations and restrictions imposed on You by this clause 26.
(d) You must not;
(e) You must immediately notify Us if You become aware of any unauthorised access to, or use or disclosure of, any Confidential Information.
(f) The obligations in this clause 26 do not apply to You where You are required by law to disclose any Confidential Information, however You must immediately give Us notice of that requirement under law and You must only disclose that portion of Confidential Information which You are legally required to disclose.
(g) At Our request, You must immediately:
all documents (including copies and electronic copies) that contain, record or refer to Confidential Information that are in Your possession, power or control.
(h) This clause 26 survives the expiration or termination (for any reason) of the Contract and is in addition to and not in derogation of obligations at law or under any statute or trade or professional custom or use.