TRADING TERMS AND CONDITIONS
1.
Definitions
Company of
any change in the Applicant’s corporate structure or the sale of any business
operated by the Applicant; and
In these Trading Terms and Conditions
the following definitions apply:
Agreement means
any agreement for the supply of Goods by the Company to the Applicant; Applicant means
the Person making the application for commercial account; Company means
ST GEORGE SMALLGOODS PTY LTD ACN 003 085 201
T/AS ST GEORGE FOODSERVICE their successors and
assigns and all of their associated and subsidiary companies; Account means
any commercial account opened by the Company in favour of the Applicant by
which the Applicant is able to purchase Goods from the Company on credit and/or
COD basis; C h a r g e d P r o p e r t y m e a n s all of the
rights, property, title, estate and interest of whatever kind and wherever
situated and whether present or future in any freehold or leasehold property
and/or real estate and in any Land which the Applicant now has or may hereafter
have; Goods means goods and/or services supplied or to be
supplied to the Applicant by the Company; Land means land and
includes but is not limited to land as defined in the Real Property Act 1900
(NSW) and/or the Conveyancing Act 1919 (NSW) and/or their equivalents in other
States or Territories of the Commonwealth of Australia; Loss includes
but is not limited to any direct or indirect losses, consequential loss,
claims, legal costs, demands, damages, consequential damage, liabilities,
expenses, charges, suits, actions and/or penalties; Other
Property means all presently existing and after-acquired legal or
equitable right, estate or interest of the Applicant in any personal property,
licenses, water rights, choses in action, goodwill, uncalled capital and called
up (but unpaid) capital, wherever situated; Person includes
natural persons, firms, incorporated associations, unincorporated associations,
registered charities, partnerships, joint ventures, trusts, government or
statutory authorities and corporations; and Terms and Conditions means
these Trading Terms and Conditions.
2.
Interpretation:
In theseTerms and
Conditions reference to:
1.
One gender includes others and the singular includes the plural;
2.
A Statute, regulation or
provision of a statute (Law) includes (i) that Law as
amended or re-enacted; (ii) a statute, regulation or provision enacted in
replacement of that Law, and (iii) another regulation or statutory instrument
or amendment made or issuedunder that Law;
3.
Payment includes repayment, discharge or satisfaction; and
4.
If the Applicant comprises two
or more Persons, (i) a reference to the Applicant
includes each and any two or more of them; and (ii) these Terms and Conditions
bind each of them jointly and severally.
3. In consideration of the Company agreeing to provide
a
Commercial
Account to the Applicant:
1.
The Applicant acknowledges and
expressly agrees that these Terms and Conditions apply to and form part of each
and every Agreement;
2.
The Applicant acknowledges and
expressly agrees that these Terms and Conditions will prevail over any other
terms and conditions.
3.
The Applicant acknowledges and
expressly agrees that any request and/or order by the Applicant to the Company
for Goods shall constitute confirmation by the Applicant of its acceptance and
the operation of these Terms and Conditions;
4.
The Applicant warrants to the
Company that the Commercial Account and/or any Agreement and/or any Goods are
for commercial, business and/or trade purposes only;
5.
The Applicant acknowledges and
agrees that the Company can vary the level of credit allowed (including to nil
requiring cash on delivery or prior to delivery) to the Applicant by the
Company at any time and in its absolute discretion without having to give
notice to the Applicant;
6.
The Applicant shall provide
written notification to the
7.
Should the Applicant provide
written notification in accordance with (f) above it will still be liable for
any Goods purchased on its Account opened for or on behalf of the Applicant
until written notice is received by the Company and full payment is made with
respect to allamounts owing.
4.
Retention
of Title
1.
It is the intention of the
Company and agreed by the Applicant that (i) property
in the Goods shall not pass until the Applicant has paid all amounts owing for
the particular Goods and the Applicant has met all other obligations due to the
Company under these Trading Terms and Conditions and; (ii) the Goods or the
proceeds of the sale of the Goods shall be kept separate until the Company has
received payment and all other obligations of the Applicant are met.
2.
It is further agreed that: (i) The Applicant shall not deal with the money of the
Company in any way which may be adverse to the Company; and (ii) Until such
time as ownership of the Goods shall pass from the Company to the Applicant the
Company may give notice in writing to return the Goods or any of them to the
Company (upon which notice the rights of the Applicant to obtain ownership or
any other interest in the Goods shall cease); and (iii) If the Applicant fails
to return the Goods that are the subject of such a notice then the Company
(including through its agent/s and/or attorney/s) may enter any land and/or
premises owned or occupied by the Applicant at which the Company in its
absolute discretion believes the Goods may be situated as the invitee of the
Applicant (and the Applicant hereby irrevocably extends such an invitation) and
take possession of such Goods without being responsible for any damage thereby
caused; and (iv) The Applicant shall not charge the Goods in any way nor grant
any interest in the Goods whilst they remain the property of the Company; and
(v) The Company may commence proceedings to recover monies owing for the Goods
as sold and delivered notwithstanding the fact that ownership of the Goods may
not have passed to the Applicant because of these Trading Terms and Conditions.
5.
DeliveryofGoods
1.
The Company shal not
be liable for any Loss arising in any way from any delay in delivery or any
failure to deliver any Goods nomatter howsuchdelayor failure arises.
2.
Goods shall be deemed to be
delivered to the Applicant as soon as they are ready for physical delivery to
or collection bythe Applicant.
3.
The Applicant agrees that the
Company shall not be responsible for or under any duty to physically deliver or
arrange for delivery of any Goods to the Applicant.
4.
The Company may elect to arrange
such delivery at its discretion, which shall be without liability and at the
Applicant’s risk in all respects. Further to (c) above, if the Company elects
to arrange delivery and there is nobody present at the delivery address at the
time of attendance (whether or not it is before the opening time nominated by
the Applicant) the Applicant hereby requests that the Company leave the Goods
at the delivery address and, should the Company comply with such a request, the
Company will not be held liable in any way for any loss that results from same
– including any loss or damage to the Goods.
5.
The time for delivery of any
Goods shall not, in any circumstances, be of the essence notwithstanding any
representations (oral and/ or written) by the Company to the Applicant or any
other person.
6.
The Applicant could pay the
Company a delivery fee, such fees to be either the Company’s Standard Delivery
Fee (which may vary from time to time and which the Applicant is taken to
know).
7.
The Applicant authorises the
Company to use the services of sub- contractors to undertake deliveries of
Goods to the Applicant from t ime to t ime and the Applicant indemnifies the Company against any
loss suffered as a result thereof.
6.
The PPSA
1.
The Applicant may sell the Goods
and/or Specific Collateral in the ordinary course of business but any proceeds
of sale received by the Applicant must be held in trust for the Company and
held separately and not mixed with any other funds.
2.
These Trading Terms and
Conditions constitute a security agreement for the purposes of the Personal
Properties Security Act (“PPSA”) and the Purchase Money Security Interest
(“PMSI”) is taken by the Company in all the Goods and/or Specific Collateral
supplied by the Company to the Customer now or in the future and in addition
the security includes all Goods and/or Specific Collateral sold by the
Applicant to its customers. The Goods and/or Specific Collateral supplied by
the Company to the Applicant constitute Collateral for the purposes of the
PPSA.
3.
To the maximum extent permitted
by law, the Applicant and the Company agree that the following provisions of
the PPSA do not apply to the enforcement by the Company of its Security
Interest in the Goods and/or Specific Collateral: sections 95, 118, 121(4),
125, 130, 132, 135, 137, 142 and
143.
4.
The Applicant also waives all
requirements for the Company to give notices under the sections referred to in
the preceding paragraph pursuant to section 144 of the PPSA.
5.
The Applicant acknowledges and
agrees that the Company may apply to register a PMSI or Security Interest in
the Goods and/or Specific Collateral at any time before or after delivery of
the Goods and/or Specific Collateral.
6.
The Applicant waives its right
under section 157 of the PPSA to receive notice of any Verification of the
Registration.
7.
The Applicant and Customer agree
that they will not disclose to any Interested Person any information pertaining
to the Company’s PMSI or Security Interest or these Trading Terms and
Conditions. This obligation constitutes a Confidentiality Agreement for the
purposes of section 275(6) of the PPSA.
7.
Defects
1.
The Applicant agrees that it
shall inspect the Goods upon delivery and must, within 48 hours of delivery,
provide notification to the Company of any alleged defects, any short deliveries or any failure to fulfil any quotation or order.
2.
Should the Applicant fail to
provide Notice of Defect to the Company as required then the Applicant
expressly agrees that the Goods shall be deemed to be in
compliance with the order and free from any defect whatsoever.
8.
Passing of
Risk and When Goods Taken to be Sold
1.
Notwithstanding any statutory or
other provision to the contrary, Goods are taken to be
sold by the Company to the Applicant when there has been a delivery of the
Goods, whether or not title or property in them has passed from the Company to
the Applicant.
2.
Notwithstanding the retention of
title provisions below, the risk of loss or damage to Goods shall pass to the
Applicant upon delivery of the Goods.
9.
ReturnofGoods
1.
The Company may, in its sole
discretion and subject to any conditions it deems appropriate, agree to accept
the return of Goods which remain in good order and condition, however any
restocking fee levied by a third party as well as any applicable restocking fee
charged by the Company may be debited to the Commercial Account of the
Applicant.
10.
Fees&Taxes
Except as may be expressly stated otherwise, the
prices quoted by the Company for the supply of the Goods do not include sales
tax, stamp duty or any other tax or duty (including, but not limited to, any
GST) and the cost of sales tax, stamp duty, GST or any other tax shall be borne
by the Applicant.
11.
PaymentTerms, SetOff & Discounts
etc.
1.
The Applicant agrees to pay the
Company for all Goods in accordance with these Terms and Conditions.
2.
The amounts listed on statements
of account or invoices issued by the Company are payable in full within agreed
payment terms.
3.
The Applicant agrees that should
the Applicant fail to make any payment in accordance with (b) above: (i) all amounts that have been listed on statements of
account or invoices issued to the Company to that time that have not been paid
will become immediately due and payable; and (ii) the Company will be entitled
to charge the Applicant interest on any amounts owing at the standard rate 15%
per annum from the date they became due for payment; and (iii) At its complete
discretion the Company may refuse to supply further Goods to the Applicant.
4.
The Applicant expressly agrees
and acknowledges that it shall not be entitled to set-off in law or in equity
or to apply any deduction from the amount payable to the Company, including
without limitation any damages, losses, costs and/or expenses alleged to be
recoverable from the Company by the Applicant as a consequence of any alleged
breach of this Agreement or any credit claim or for any other reason until such
time as the full payment of all monies set out on any invoices or statements of
account is made to the Company.
5.
Any discount, rebate, special
pricing etc. provided by the Company to the Applicant are granted at the sole
discretion of the Company and are also conditional upon the Applicant making
payment for any Goods in accordance with these Terms and Conditions. They will
be removed at the discretion of the company if accounts are in arrears.
6.
The Applicant agrees to pay an
Administration Fee of $50.00 should a cheque provided to the Company by the
Applicant not be met on presentation.
12.
Warranties
Subject to clause 18, the Company warrants that
Goods will, under proper use and/or installation, be free from any defects in
construction or operation arising solely from faulty design, manufacture
or workmanship on the part of the Company. Those parts and/or components which
constitute Goods (or which form part of Goods) and
which are not manufactured by the Company shall be warranted by the Company
only to the extent that they are warranted by the relevant supplier or
manufacturer in circumstances where the Company is able to pass the benefit of
such warranty to the Applicant. In any event, the period of such warranties
shall not exceed 3 months from the date of delivery.
13.
Exclusions
The warranty set out in clause 17 does not apply
where: (a) a defect arises from ordinary wear and tear, excessive heating,
neglect, misuse, accident, lack of care or incorrect installation;
(b) the Applicant has in any way modified, serviced or repaired the Goods; or (c) the Applicant has not
complied with any written or oral instructions from either the manufacturer or
the Company concerning the installation, use, operation or maintenance of the
Goods or any training with the respect to the use of the Goods.
14.
Acknowledgement
To the full extent permitted by law the Applicant
acknowledges and agrees that: (a) it relies on its own skill and judgment in
relation to the Goods, including but not limited to the intended use of the
Goods and the cost of the Goods; and (b) the Company shall be under no
liability for any unsuitability for any purpose of Goods irrespective of any
knowledge it may possess as to the purpose for which the Goods were required by
the Applicant; and (c) the Company would not provide a Commercial Account to the
Applicant if the Applicant did not agree strictly to abide by these Terms and
Conditions.
15.
Indemnity
The Applicant unconditionally and irrevocably
indemnifies and keeps indemnified the Company from and against any and all Loss which may be made or brought against or
suffered or incurred by the Company, the Applicant and/or any third party
including but not limited to:
1.
(Property damage): for any and
all Loss which may be made or brought by or suffered or incurred by any person
(including but not limited to the Company, the Applicant and/ or any third
party) for any and all damage to that person’s property (whether real or
personal) arising in any way whatsoever out of or in connection with the
carriage, use, installation, storage orkeeping of any
Goods;
2.
(Personal injury): for any and
all Loss which may be made or brought by or suffered or incurred by any person
(including but not limited to the Company, the Applicant and/ or any third
party) for any injury such person may sustain arising in any way whatsoever out
of or in connection with the carriage, use, installation, storage or keeping of
any Goods;
3.
All expenses, costs,
disbursements, legal costs (on a full indemnity basis); search fees and/or
commercial agent’s debt collection fees (including any commission that would be
payable if the Applicant makes payment of the amount owing) incurred or to be incurred
by the Company in relation to any action taken by the Company to attempt
recovery of any monies owing by the Applicant to the Company or to attempt to
take possession of any Goods pursuant to these Terms and Conditions (or
otherwise) or to enforce any of its rights under these Terms and Conditions or
any Agreement and
4.
Any Loss caused, whether
directly or indirectly, by the unauthorised use of the Commercial Account.
16.
Waiver
1.
Any waiver by the Company of
strict compliance with these Terms and Conditions shall not be a deemed waiver
by the Company unless it is in writing and: (i) it
specifies the specific right which is being waived; and (ii) it is specifically
referred to as a waiver; and (iii) it is signed by the Credit Manager of the
Company.
2.
A single or partial exercise or
waiver by the Company of a right will not prevent the Company from exercising
that right or any otherrightat any time.
17.
UnauthorisedUseofCommercialAccount
The Applicant acknowledges that: (a) The Company
will not be liable in any way whatsoever for any unauthorised use of the
Applicant’s Commercial Account; and (b) the Applicant will nevertheless be
liable to the Company for payment of any Goods ordered on the Applicant’s
Commercial Account even if such orders were made without the authority of the
Applicant.
18.
Amendment
of Terms and Conditions
1.
The Applicant acknowledges and
agrees that these Terms and Conditions may be amended by the Company at any
time by providing written notice of such amendment to the Applicant; or
2.
Any such amendments to these
Terms and Conditions shall apply to orders of Goods fromthe
time noticeis given.
19.
Invalid or
Unenforceable Terms etc
1.
Should any of these Terms and
Conditions or any part of these Terms and Conditions be illegal, invalid or
unenforceable for any reason they shall be severed from the other Terms and
Conditions and shall not effect
the remaining Terms and Conditions.
20.
Service of
Documents etc
1.
Service of any documents,
including but not limited to, notices, demands, originating process of legal
proceedings or any other document required to be served or provided by the
Company to the Applicant under these Terms and Conditions or any law (collectively
referred to as “Documents”) shall be effectedupon the
Applicant by any of the followingmethods:
(i) sending it by pre-paid ordinary post to the
Applicant’s principal place of business, trading address, postal address or registered office; (ii) sending it by email to
the Applicant; (iii) sending it by facsimile to the Applicant; or (iv)
delivering it to the Applicant’s principal place of business, trading address,
postal address or registered office. The addresses, email address or facsimile
number used for the methods in (a) above may be the most recent ones provided
by the Applicant to the Company in written form or may be the most recent ones ascertainedby the Company through itsown
investigations.
2.
The method in (a) above chosen
to serve Documents shall be at the absolutediscretionofthe
Company.
3.
The methods in (a) above do not
limit the use of any other methods for service of Documents available to the
Company under any statute and/or law.
4.
Service of Documents in
accordance with one of the methods in
(a) is deemed to have been effective when the
Company (by its authorised officers, agents or
lawyers) does the thing required whether or not the Documents are received by
the Applicant.
5.
The Applicant agrees not to
dispute the service of Documents thathave beenserved inaccordancewiththisclause.
6.
An affidavit or statutory
declaration on behalf of the Company will be conclusive proof of service of
Documents under this clause.
21.
EvidenceinLegal Proceedings
A Certificate given by any authorised person on
behalf of the Company in legal proceedings that certifies as to an amount of
monies (“Debt”) owing to the Company by the Applicant shall be prima facie
evidence of: (i) the formation of any Agreement that
relates to that Debt, including the ordering of the relevant Goods by the
Applicant; and (ii) the delivery of the Goods to which that Debt relates to the
Applicant by the Company; and (iii) the fact that the Goods where/are fit for
the purpose for which they where supplied; and (iv)
the fact that the Debt has not been paid; and (v) the fact that the Debt is
owed by the Applicant to the Company.
22.
Jurisdiction
1.
The Applicant expressly agrees
that it is an essential term of these Terms and Conditions that any legal
proceedings between the Company and the Applicant will be governed by the laws
of the State of New South Wales and the Commonwealth of Australia, as applicable.
2.
The Applicant expressly agrees
that it is an essential term of these Terms and Conditions that it will
irrevocably submit to the exclusive jurisdiction of the courts of New South
Wales for any legal proceedings betweenthe Company
and Applicant.
3.
The Applicant expressly agrees
that it shall not attempt to interfere in any way whatsoever with the choice of
jurisdiction herein.
4.
The Applicant expressly agrees
that it will not attempt to intervene with the jurisdiction of any court of New
South Wales of the operation of these Terms and Conditions by seeking a stay
(for example, under the Service and Execution of Process Act 1992) or by
seeking to transfer the proceedings or by seeking the striking out or dismissal
of the proceedings on the basis that they should be held and determined in a
State or Territory other thanNewSouthWales.
5.
The Applicant and the Company
expressly agree that the Company is entitled to rely on these Terms and
Conditions as a plea in bar to any application brought by the Applicant to have
proceedings heard in the State other than New South Wales or to interferewiththe operationofthese
Terms and Conditions.
23. Charging Clause
1.
The Applicant, in order to
secure all monies owing by the Applicant to the Company, hereby charges all of
its beneficial interest in Charged Property in favour of the Company (“the
Charge”);
2.
The Applicant hereby irrevocably
authorises the Company to lodge a caveat over any or all of the Charged
Property noting the Company’s interest on the title(s) of the Charged Property,
Land or Other Property until all monies payable have
been paid to the Company;
3.
The Applicant hereby agrees that
if more than one Person comprises the Applicant, then each such Person
separately grants the Charge;
4.
The Applicant hereby agrees and
consents to the Company taking all actions necessary to give prompt effect to
this security including by the lodging of any caveat upon the title of the
Charges Property or Land or Other Property; and
5.
The Applicant consents to and
requests the Company to appoint any such person which the Company deems fit to
be the attorney of the Applicant for the execution of any document necessary to
give effect to this charging clause.