THIS TERMS OF TRADE AGREEMENT (WITH PPSA PROTECTION) IS CONSTITUTED BY
THIS TERMS OF TRADE AGREEMENT (WITH PPSA PROTECTION) is made on the date specified in the Application For Commercial Credit.Â
In this Agreement unless the contrary intention appears:
“Agreement” means this Agreement Terms of Trade Agreement (with PPSA protection) as constituted by the Application For Commercial Credit as enclosed herein, these Terms and Conditions, the Customer Acknowledgement as enclosed herein, the Privacy Act Authorisation as enclosed herein, and the Deed of Guarantee & Indemnity as enclosed herein.
“Collateral” means the Security Property to which the Security Interest is attached, and includes the goods supplied by the Company as part of the Goods and Services, and in relation to Registration with respect to the Security Interest, includes the Security Property described by the Registration (whether or not the Security Interest is attached to the Security Property) and all other present and after-acquired rights and Interests in land and any other property, rights and Interests that is not personal property.
“Company” means Conquest Crop Protection Pty Ltd ACN 098 814 932 and includes its successors and assigns and includes the meaning given to “secured party” in the PPSA.
“Confidential Information” means all trade secrets, the Security Related Confidential Information, ideas, know-how, concepts and information whether in writing or otherwise relating in any way to the Company or to the Company’s employees, agents, the Customers, the Goods and Services, the Credit Amount, Company price lists, the Company’s affairs or business, sales, marketing or promotional information, the terms of this Agreement, but does not include information thatÂ is, or becomes part of, the public domain otherwise than by breach of this Agreement.
“Credit Amount” means the amount specified in Application For Commercial Credit to be paid to the Company as consideration under this Agreement.
Â “Customer” means the entity whose name and address is specified in Application For Commercial Credit and includes its successors and assigns and includes the meaning given to “grantor” in the PPSA.
“Event of Default” means any of the following events:
(i) - The Customer does not make a payment due to the Company under this Agreement or any other agreement;
(ii) - The Customer is unable to pay its debts as and when they fall due;
(iii) - The Customer ceases or suspends conduct of its business, or threatens to;
(iv) - A resolution is passed or proposed or a summons is presented to wind up the Customer;
(v) - A receiver and/or manager or other form of insolvency administrator is appointed over the Customer or all or part of Customer’s assets;
(vi) - The Customer makes or proposes to make any arrangement with its creditors; or
(vii) - The Customer commits an act of bankruptcy.
“Enforceability” means the Company’s ability to exercise all of its rights, under this Agreement or otherwise, in relation to the Security Interest.
“Guarantors” means the persons identified as guarantors in the Deed of Guarantee & Indemnity as enclosed herein.
“Goods and Services” means the goods and services provided by the Company in respect of agricultural, chemical manufacturer products, supplies of goods by the Company and the provision of services by the Company to which the Credit Amount applies.
“Intellectual Property” means any and all intellectual and industrial property rights throughout the world and owned by the Company including rights in respect of or in connection with the Goods and Services, any Confidential Information, copyright (including future copyright and rights in the nature of or analogous to copyright), moral rights, inventions (including patents), trademarks, service marks; and designs whether or not now existing and whether or not registered or registrable and includes any right to apply for the registration of such rights and includes all renewals and extensions.
“Monies Hereby Secured” means all monies, including the Credit Amount, for which the Customer may now or hereafter be indebted or liable or contingently indebted or liable to the Company on any account or for any reason whatsoever either solely or jointly with any other person and whether as principal or as surety, including in particular but without limiting the generality of the foregoing:
(i) - any money which is now owing or hereafter becomes owing under the terms of any agreement between the Customer and the Company or under the terms of any Security (including pursuant to this Agreement), and guarantee or indemnity given by the Customer or by the Guarantor to the Company; and
(ii) - any money which the Company pays or becomes liable to pay to for or on account of or at the request of the Customer either alone or jointly with any other person either by direct advances or by reason of the Company accepting, endorsing, paying or discounting any order, draft, cheque, promissory note, bill of exchange, warrant or other instrument whether negotiable or not and whether it has matured or not, entering into any bond, indemnity, guarantee or letter of credit, confirming any order or otherwise incurring liabilities for or on account of or at the request of the Customer; and
(iii) - any money which the Company or any receiver hereunder is required to pay or may in its or his discretion pay in pursuance or in defence or in aid of its or his rights and powers hereunder; and
(iv) - any money and damages payable to the Company pursuant to any assignment by any person to the Company of a debt payable by the Customer or other transaction, including, without limitation, any assignment or other transaction to which the Customer is not a party and irrespective of whether the Customer consented to the assignment or other transaction or whether before that assignment or other transaction the payment of those monies was secured or unsecured, Interest was payable by the Customer on that debt or any other thing; and
(v) - Interest upon all such monies as aforesaid calculated daily and in accordance with the terms and conditions of this Agreement.Â Â
“Parties” means the parties to this Agreement.
“PPSA” means the Personal Properties Securities Act 2009 (Cth) and the Personal Property Securities Regulations 2010 (Cth).
“Privacy Act” means the Privacy Act 1988 (Cth).
“Interest” means the amount of interest payable on monies due and calculated in accordance with the rate specified in this Agreement.
(i) - The same as defined in the PPSA; and
(ii) - Also, means registration of the Security Interest on the relevant register to enable the Security Interest to have priority in accordance with this Agreement.
“Security Interest” means the Purchase Money Security Interest (PMSI), as that term is used and defined in the PPSA, granted by the Customer in the Security Property to the Company under this Agreement to secure payment of all money by the Customer and performance of all the Customer’s obligations under this Agreement.
“Security Property” means:
(i) - All the Customer’s present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) and/or all present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) in which the Customer has rights and includes all of the Collateral and any other assets, property and rights over which the Security Interest is permitted by law; and
(ii) - All assets, property and rights, real or personal of any nature whatsoever owned by the Customer and/or in which the Customer has rights, at present or in the future.
And, where applicable, includes:
(i) - The proceeds from the sale of any of the Security Property; and
(ii) - The Customer’s Security Interest in any Collateral; and
(iii) - includes the goods supplied by the Company as part of the Goods and Services
“Security Related Confidential Information” means this Agreement and the terms of the grant of the Security Interest and any information and/or documents relating to the Company, the Company’s business, or any intellectual property belonging to the Company.
A reference to this Agreement includes any Application For Commercial Credits, attachments, variations, amendments to or extensions of this Agreement.
Any agreement, warranty, representation or obligation which binds or benefits 2 or more persons under this Agreement, binds or benefits those persons jointly and severally.
Headings and the table of contents appear for convenience only and do not form part of this Agreement.
Words and phrases not defined in this Agreement will have the meaning given to them in the PPSA.
A reference to:
(1) - A time of day means that time of day in the State in which the Company’s registered office is located;
(2) - The singular includes the plural and vice versa;
(3) - Any gender includes all other genders;
(4) - A person includes an individual, a body corporate and a government;
(5) - Any other agreement or instrument where amended or replaced means that agreement or instrument as amended or replaced;
(6) - A Clause or Application For Commercial Credit is a reference to a clause or Application For Commercial Credit of this Agreement;
(7) - “$” or “dollars” is a reference to the lawful currency of Australia;
(8) - A day means a period of time commencing at midnight and ending 24 hours later.
The terms of payment in respect of the Credit Amount are strictly twenty five (25) days (or such other period as nominated or agreed to by the Company in this Agreement) from end of month of the date of invoice and payment is due and payable on that date.Â The Company and its related bodies corporate (as that term is defined in the Corporations Act 2001(Cth) may, at any time, unilaterally vary this Agreement in the Company’s absolute and unfettered discretion.
Should the Customer not pay the Credit Amount in accordance with the credit terms as provided herein, or as agreed in writing by the Company from time to time, the Company shall be entitled to charge an administration fee of 10% of the amount of the invoice payable per year, or part thereof, from the date the Goods and Services were supplied (and not the day when the Company’s invoice was payable) until payment of the Credit Amount is made by the Customer.
The Customer agrees at all times to permit the Company access to the Customer’s physical address or any other address or location of the Customer for the purposes of identifying, counting, or taking inventory in respect of any:
Â goods supplied by the Company to the Customer as part of the Goods and Services, or
consignment stock supplied to the Customer by the Company, or
any other of the Customer’s stock as required by the Company’s insurer.Â
The Customer agrees that the rights of access pursuant to clause 29 are granted so that the Company can conduct all physical checks as may be considered reasonable by the Company or otherwise considered reasonably by the Company’s insurer.Â
The Customer agrees to provide the Company with all assistance requested or required by the Company in order to give proper effect to the Company’s rights of access pursuant to clauses 29 and 30 of this Agreement.Â
Personal Properties Securities Act 2009 (Cth) (PPSA)
The Parties agree that this Agreement constitutes a security agreement for the purposes of the PPSA and the terms of this Agreement create a Security Interest.
The Customer as beneficial owner and, if the Customer is the trustee of any trust, in its capacity as trustee of that trust the Customer, hereby charges in favour of the Company with the payment of the Monies Hereby Secured the whole of its undertaking and assets whatsoever and wheresoever both present and future including the goodwill of its business and its uncalled and called but unpaid capital including all premiums.
This charge shall be a fixed charge as regards any Interest in freehold and leasehold land, fixtures, plant, equipment and other fixed assets, intellectual property documents evidencing title to or the right to possession of any property the goodwill of its business and its uncalled and called but unpaid capital, including all premiums, and shall be a floating charge as regards all other assets hereby charged.Â Insofar as it is a floating charge it shall not hinder or prevent any sale or other dealing by the Customer in the ordinary course of its business.Â
The Customer grants the Security Interest to the Company, to secure payment of the Monies Hereby Secured and performance of obligations by the Customer under this Agreement.
The Customer must, within the timeframe notified by the Company, sign all documents and do all things necessary, as notified by the Company to:
Enable Registration with respect to the Security Interest and for that Registration to continue until such time as all of the Customer’s obligations under this Agreement have been satisfied, including providing the Customer’s details and any serial numbers required for Registration.
In accordance with the PPSA requirements and provisions, enable the Security Interest to be perfected and continue to be perfected until such time as all of the Customer’s obligations under this Agreement have been satisfied.
Ensure that the Security Interest has priority over all other Security Interests in the Security Property, whether registered, perfected or otherwise and whether created or arising before or after the creation of the Security Interest, except those Security Interests which the Company agrees will have priority over the Security Interest as specified in Application For Commercial Credit or which by law have priority over the Security Interest.
Ensure that the Company is able to enforce the Security Interest until such time as all of the Customer’s obligations under this Agreement have been satisfied and the Customer does not do anything which affects the Enforceability of the Security Interest.
Make any changes to the Registration relating to the Security Interest as the Company may require from time to time, including to enable correction of any defects in the Registration.
In accordance with the PPSA requirements and provisions, enable any Security Interest that forms part of the Collateral to be perfected and continue to be perfected until such time as all of the Customer’s obligations under this Agreement have been satisfied.
In accordance with the PPSA requirements and provisions, ensure that the Company’s Security Interest in any Collateral has priority over all other Security Interests in the Collateral, except those Security Interests which the Company agrees will have priority over the Customer’s Security Interest in the relevant Collateral; and
In accordance with the PPSA requirements and provisions, ensure that a third person cannot acquire an Interest in any Collateral free of the Company’s Security Interest other than, where applicable, as a result of the Customer dealing with inventory in the ordinary course of business.
Company May Exercise Rights
The Company may exercise its rights in relation to the Security Interest any time after the Customer fails to comply with its obligations under this Agreement including any failure by the Customer to pay the Credit Amount by the time required under this Agreement for such payment.
To the extent permitted by the PPSA or any other relevant laws, the Customer waives its rights to receive any notices required to be issued or which would ordinarily be issued, whether by the Company or any other person, to the Customer under the PPSA or the other relevant laws.
The Customer will be entitled to a release of the Security Interest when all its obligations under this Agreement have been satisfied.
The Customer acknowledges and agrees that this Agreement shall be governed by the laws of Western Australia, and the laws of the Commonwealth of Australia which are in force in Western Australia.
The Customer acknowledges and agrees that any contract for the supply of Goods and Services between the Company and the Customer is formed at the address of the Company.
The parties to this Agreement submit to the non-exclusive jurisdiction of the courts of Western Australia and the relevant federal courts competent to hear appeals from those courts.
The Customer charges in favour of the Company all of its estate and Interest in any real property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
The Customer charges in favour of the Company all of its estate and Interest in any personal property that the Customer owns at present and in the future with the amount of its indebtedness hereunder until discharged.
The Customer appoints as its duly constituted attorney the Company's secretary from time to time to execute in the Customer's name and as the Customer's act and deed any real property mortgage, bill of sale or consent to any caveat the Company may choose to lodge against real property that the Customer may own in any government land titles office in any state or territory of Australia, even though the Customer may not have defaulted in carrying out its obligations hereunder.
Purpose of credit
The Customer acknowledges and agrees that the Credit Amount provided to the Customer by the Company is to be applied wholly or predominantly for commercial purposes.
Formation of contract
Quotations made by the Company shall not be construed as an offer or obligation to supply in accordance with the quotation.Â The Company reserves the right to accept or reject, at its discretion, any offer to purchase received by it.Â Only written acceptance by the Company of the Customer’s offer shall complete a contract.
Placement of an order, either verbally or in writing, shall imply acceptance of the Company’s offer and of these terms and conditions.
Quotations shall be capable of acceptance only during a period of 30 days unless otherwise specified in writing by the Company.
Quotations will be for product ex the Company’s nominated Perth warehouse.Â Collection and freight shall be the responsibility of the Customer.Â Goods will be available for collection on the requested pick up date unless otherwise advised.Â The Customer will be liable for any additional warehouse of the Companying and administration costs arising as a result of late pick up by the Customer.Â The goods will be invoiced on the pickup date or soon thereafter.
Retention of title
The Parties agree that in the Company’s absolute and unfettered discretion any clause, provision, condition or right whatsoever contained under the heading ‘Retention of title’ in this Agreement shall prevail over and above any other clause, provision, condition or right whatsoever contained in this Agreement. The Company also has the absolute and unfettered discretion to determine that any clause, provision, condition or right under the heading ‘Retention of title’ of this Agreement shall apply concurrently and shall co exist and co apply together with any other clause, provision, condition or right whatsoever contained in this Agreement, or otherwise the Company shall determine that any other clause of this Agreement shall prevail over any clause contained under the heading ‘Retention of title’ in this Agreement.
Whilst the Customer has not paid for the goods supplied (and comprising part of the Goods and Services) in full at any time, the Customer agrees that property and title in the goods supplied (and comprising part of the Goods and Services) shall not pass to the Customer and the Company retains the legal and equitable title in those goods supplied (and comprising part of the Goods and Services) and not yet sold.
Until payment in full has been made to the Company, the Customer will hold the goods supplied (and comprising part of the Goods and Services) in a fiduciary capacity for the Company and agrees to store the goods supplied (and comprising part of the Goods and Services) in such a manner that they can be identified as the property of the Company, and shall not mix the goods supplied (and comprising part of the Goods and Services) with other similar goods.Â
The Customer shall be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Company, the Customer shall sell as agent and bailee for the Company and the proceeds of sale of the goods shall be held by the Customer on trust for the Company absolutely.
The Customer’s indebtedness to the Company, whether in full or in part, shall not be discharged in any manner whatsoever unless and until the funds held on trust are remitted to the Company.
The Customer agrees that whilst property and title in the goods supplied (and comprising part of the Goods and Services) remains with the Company, the Company has the right, with or without prior notice to the Customer, to enter upon any premises occupied by the Customer(or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Customer) to inspect the goods supplied (and comprising part of the Goods and Services) and to repossess the goods supplied (and comprising part of the Goods and Services) which may be in the Customer’s possession, custody or control when payment of the Credit Amount is overdue.
The Customer will be responsible for the Company’s costs and expenses in exercising its rights under this Agreement or otherwise under the PPSA.Â Where the Company exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Customer against the Company, its employees, servants or agents.
The Customer agrees that where the goods supplied (and comprising part of the Goods and Services) have been retaken into the possession of the Company, the Company has the absolute right to sell or deal with the goods supplied (and comprising part of the Goods and Services), and if necessary, sell the goods supplied (and comprising part of the Goods and Services) with the trademark or name of the Customer on those goods, and the Customer hereby grants an irrevocable licence to the Company to do all things necessary to sell those goods supplied (and comprising part of the Goods and Services) bearing the name or trademark of the Customer.
For the avoidance of doubt, the Company’s Interest in the goods supplied (and comprising part of the Goods and Services) bearing the name or trademark of the Customer constitutes a ‘purchase money security Interest’ pursuant to the PPSA.
Cancellation of terms of credit
The Company reserves the right to withdraw credit at any time, whether the Customer is in default under the terms of this Agreement or not.
Upon cancellation with or without notice all liabilities incurred by the Customer become immediately due and payable to the Company.
The Customer agrees to indemnify the Company and keep the Company indemnified against any claim.Â This indemnity includes any legal fees and expenses the Company incurs in order to enforce its rights, on an indemnity basis.
The Customer the agrees to keep the Confidential Information confidential at all times and must not, except with the Company’s prior consent, disclose the Confidential Information at any time (unless required by law or if the information is already public knowledge) except with the Company’s prior consent.
If the Customer is required, or anticipates or has cause to anticipate that it may be required, by law or by court order, to disclose the Confidential Information, the Customer must:
Immediately notify the Company of the actual or anticipated requirement and the use its best endeavours(without breach of the applicable law) to delay and withhold disclosure until the Company has had a reasonable opportunity to oppose disclosure by lawful means; and
if after the Company has exhausted all lawful means of opposing disclosure, theÂ Confidential Information needs to be disclosed, only disclose so much of the Confidential Information as is required to be disclosed by law and is approved by the Company.
The Customer must use its best endeavours to ensure that all of its nominees, employees, contractors and agents comply with this Clause.
Provision of further information
The Customer undertakes to comply with any request by the Company to provide further information for the purpose of assessing the Customer’s creditworthiness, including an updated credit application.
If the Customer is a corporation (with the exception of a public listed company), it must advise the Company of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution).Â In the case of a change of directors or shareholders the Company may ask for new guarantors to sign a guarantee and indemnity.
If the Customer is a corporation, the Customer warrants that all of its directors have signed this Agreement and that all of its directors will enter into a guarantee and indemnity with the Company in relation to the Customer's obligations to the Company.
If the Customer is the trustee of a trust (whether disclosed to the Company or not), the Customer warrants to the Company that:
the Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;
the Customer has the right to be indemnified out of trust assets;
the Customer has the power under the trust deed to sign this Agreement; and
the Customer will not retire as trustee of the trust or appoint any new or additional trustee without advising the Company.
The Customer must give the Company a copy of the trust deed upon request.
If the Customer enters into this Agreement as partners, the Customer warrants that all of the partners have signed this Agreement and that all of the partners will enter into a guarantee and indemnity with the Company in relation to the Customer's obligations to the Company.
If the Customer is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Company.Â In the case of a change of partners, the Company may ask for new guarantors to sign a guarantee and indemnity.
If the Customer becomes insolvent, the Customer remains liable under this Agreement for payment of all liabilities incurred hereunder.Â The Customer remains liable under this Agreement even if the Company receives a dividend or payment as a result of the Customer being insolvent.
A waiver of any provision or breach of this Agreement by the Company must be made by an authorised officer of the Company in writing.Â A waiver of any provision or breach of this Agreement by the Customer must be made by the Customer's authorised officer in writing.
The Customer must pay for its own legal, accounting and business costs and all costs incurred by the Company relating to any default by the Customer.Â The Customer must also pay for all stamp duty and other taxes payable on this Agreement (if any).
The Customer will pay the Company’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Customer, including debt recovery fees and legal costs on an indemnity basis.Â Such costs and disbursements will be due and payable by the Customer to the Company irrespective of whether pursuit of the recovery action, claim or remedy is successful.
Taxes and duty
The Customer must pay GST on any taxable supply made by the Company to the Customer under this Agreement.Â The payment of GST is in addition to any other consideration payable by the Customer for a taxable supply.
If as a result of:
any legislation becoming applicable to the subject matter of this Agreement; or
any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
the Company becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Customer, then the Customer must pay the Company these additional amounts on demand.
All prices will be quoted exclusive of GST. However, all goods for the purposes of this Agreement will be sold on a ‘plus GST (if any)’ basis.Â Invoices will be issued in the prescribed form as set out by Section 195-1 of the GST Act and the related imposition Acts of the Commonwealth (the GST Law).
“GST” means GST within the meaning of the GST Act.
“GST Act” means A New Tax System (Goods and Goods and Services Tax) Act 1999 (as amended).
Expressions the used in this section have the same meanings as when the used in the GST Act.
Except where this charge specifies otherwise, an amount payable by a party under this charge in respect of a taxable supply by the other party represents the value of the supply and the recipient of the supply must, in addition to that amount and at the same time, pay to the Company the GST payable in respect of the supply.
An amount payable by the Customer in respect of a creditable acquisition by the Company from a third party must not exceed the sum of the value of the Company’s acquisition and any additional amount payable by the Customer on account of the Company’s GST liability.
A party is not obliged to pay the GST on a taxable supply to it unless given a valid invoice for the supply.
The Interest rate on any outstanding debts is a fixed rate of 1.5% per month unless otherwise decided by the Company or unless that interest rate is inconsistent with any provision of this Agreement.
All payments required to be made by the Customer under this Agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
Any amount due to the Company from time to time may be deducted from any monies which may be or may become payable to the Customer by the Company.
Intellectual Property Rights
The Customer acknowledges that it will not acquire any rights whatsoever in respect of any Intellectual Property rights.Â The Customer further acknowledges that it will not, in any way, whether directly or indirectly, dispute or impugn the validity of any of the Intellectual Property rights, and the Customer must not assist any other person, firm or company so to do.Â
The Customer agrees to promptly inform the Company of their becoming aware of any threatened or actual or suspected infringement, imitation, unauthorised use or misuse of any of the Intellectual Property rights.
The Customer must not the use any Intellectual Property rights except as expressly permitted by notice given to the Customer by the Company in accordance with this Agreement.
Event of Default
If an Event of Default occurs with respect to the Customer then the Customer will be in breach of this Agreement and the Company will immediately be able to enforce the Company’s rights with respect to the Security Interest given to the Company by operation of this Agreement and by the operation of the provisions of the PPSA.
Any notice to be given by the Customer to the Company must be in writing and shall be sent to the Company’s address.
No notice shall be deemed to have been given to the Company until it is actually received at such address.
Any notice given to the Customer by the Company shall be deemed to have been given to the Customer at the time that the notice is sent to the Customer’s last known address.
Disputes and Mediation
All disputes and questions which shall arise between the Company and the Customer and whether in relation to the interpretation of this Agreement or to any act or omission by either the Company, the Customer, or otherwise the subject of this Agreement shall be referred to mediation.Â In the event that such mediation shall be unsuccessful at the reasonable discretion of either the Company or the Customer, then both the Company and the Customer shall be free to institute proceedings in any court within Australia deemed appropriate for the purposes of this Agreement.
The Company is not liable for any loss caused to the Customer by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Company's control.
Exclusion of Warranties
All express or implied warranties, representations, statements, terms and conditions relating to this Agreement that are not contained specifically in this Agreement, are excluded to the maximum extent permitted by law.
Nothing in this Agreement excludes, restricts or modifies any term, condition, warranty, right or remedy implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified, which may include the Competition and Consumer Act 2010 (Cth) and corresponding Australian State or Territory legislation, which contain provisions regarding implied conditions and warranties which operate to protect the purchasers of goods and services in various circumstances (Implied Terms).
Subject to the Company’s obligations with respect to Implied Terms, the Company’s maximum aggregate liability for all claims relating to this Agreement, including but not limited to a claim in contract, tort (including negligence), equity, breach of statute, or under an indemnity, is limited to the amount paid to the Company for the provision of the goods.
Subject to the Company’s obligations with respect to this Agreement, the Company is not liable under any circumstances for:
special, indirect, consequential, incidental or punitive damages;
damages for loss of profits, revenue, goodwill, bargain, anticipated savings or loss, personal injury, death, or any other costs
or any loss or damage which the Customer suffers from, caused by the Company or contributed to by, the Company’s negligence or the negligence of the Company’s agents or servants; or
defects or damages caused by the Company in whole or in part by the Company’s neglect.
If there are any Implied Terms in this Agreement and the Company is not able to limit the Company’s remedy for a breach of such a term, condition or warranty, then the Company’s liability for breach of the term, condition or warranty is limited to:
Â In the case of goods to any one of the following determined by the Company;
(A) the replacement of the goods or the supply of equivalent goods;
(B) the repair of the goods;
(C) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(D) the payment of the costs of having the goods repaired.
In the case of services to any one of the following determined by the Company;
(A) the supplying of the services again, or
(B) the payment of the cost of having the services supplied again.
The Customer acknowledges that the Customer has not relied on any statement, representation, warranty, conduct or undertaking made or given by the Company or any person on the Company’s behalf and the Customer has relied on the Customer’s own skill and judgement in deciding to acquire the goods and in accepting this Agreement.
Any description of any goods supplied under this Agreement or otherwise given by the Company is given solely for identifying the goods that are the subject of sale and does not constitute a sale by description
If any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
The Customer agrees that this Agreement may be varied, added to, or amended by an authorised officer of the Company at any time by written notice to the Customer.
The Customer agrees that the purchase of any Goods and Services after the date of a notice of variation will be deemed to be an acceptance of such varied terms and conditions.
Any proposed variation to these terms and conditions by the Customer must be requested in writing.Â The Company may refuse any such request without providing reasons either orally or in writing.
Consent to register
The Customer hereby consents to the Company recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Company to effect such registration.
This Agreement constitutes the entire agreement between the parties relating in any way to its subject matter.Â All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect.Â No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.
The Customer agrees to the terms of the Privacy Act authorisation contained in this Agreement.
PRIVACY ACT 1988 AUTHORISATION
The Customer authorises the Company to provide certain personal information about the Customer under section 18E(8)(c) of the Privacy Act 1988.Â
The information which may be given to an agency is covered by section 18E(1) of the Privacy Act 1988 and includes:
the fact that application for credit has been made;
the fact that the Company is a credit provider to the Customer;
that the credit provided to the Customer by the Company has been discharged.