Trading Terms and Conditions of Supply (“Trading Terms”)
(Effective June 2015)
- These Trading Terms and Conditions of Supply (Trading Terms) as amended from time to time, apply to any goods supplied or to be supplied to the Customer or to any third party on the Customer's behalf from time to time. Amendments will be effective immediately by notice in writing to the Customer and by displaying the amended terms and conditions on the Website.
- To the extent permitted by law, the Customer agrees that any Order for goods once placed by the Customer cannot be cancelled unless Bennetts otherwise agrees in its absolute discretion.
- Definitions and Interpretation
Accepted Order means an Order accepted by Bennetts in accordance with clause 6.7.
Australian Consumer Law and ACL means Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended from time to time.
Bennetts means H. A. Bennett & Sons Pty Limited ACN 007 450 811 its related bodies corporate and related entities and includes their successors in title and assigns.
Business Day means a weekday on which banks are open in Melbourne, Victoria, Australia.
Credit Application means the Application for Commercial Credit made to Bennetts by the Customer.
Customer means the person or entity named in Part A of the Credit Application and their successors in title and permitted assigns who purchase goods or services from Bennetts or anyone who holds goods on consignment from Bennetts.
Default means any event where:
- the Customer fails to pay when due any moneys owing to Bennetts under these Trading Terms;
- the Customer gives any third party a security interest in accounts as original collateral in respect of any proceeds of any goods or services supplied by Bennetts to the Customer;
- an Insolvency Event occurs or is continuing;
- a representation or warranty made or issued by the Customer proves to have been untrue in any material respect when made; or
- the Customer breaches any other provision of these Trading Terms and fails to remedy it within 5 business days’ notice from Bennetts to do so.
Delivery has the meaning given in clause 7.1
Delivery Docket means the document issued to the customer in accordance with clause 7.2
Financing Change Statement has the meaning given to that term in the PPSA.
Financing Statement has the meaning given to that term in the PPSA.
Force Majeure Event means any event outside of the control of Bennetts and includes without limitation any act of God, fire, flood, storm, earthquake, strike, lockout, trade dispute, breakdown, theft, crime, delays in shipping, or the inability of Bennetts to procure necessary materials or articles preventing or retarding performance of the Trading Terms or any other cause not reasonably within the control of Bennetts (each a Force Majeure Event).
Goods means any goods or services supplied to the Customer whether on consignment or otherwise under these Trading Terms. They include goods or services described in any invoice, quotation, work authorisation or any other forms provided by Bennetts or any Order the Customer gives Bennetts.
GST means goods and services or similar tax payable pursuant to the GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Guarantor means that person, or entity, who agrees to be liable for the debts of the Customer whether on a principal debtor basis or who is otherwise a surety for the Customer.
Insolvency Event means in relation to the Customer any one or more of the following events or circumstances:
- an administrator is appointed in respect of the Customer or any Guarantor;
- except for the purpose of a solvent reconstruction or amalgamation previously approved by Bennetts:
- an application or an Order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting, an application to a court or other steps are taken for:
- the winding up, dissolution or administration of the Customer or any Guarantor; or
- the Customer or any Guarantor entering into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them; or
- the Customer or any Guarantor ceases, suspends or threatens to cease or suspend the conduct of all or a material part of the Customer’s or the Guarantor/s' business or dispose of or threaten to dispose of a material part of the Customer’s or the Guarantor/s' assets;
- the Customer or any Guarantor is, or under legislation is presumed or taken to be, insolvent or ceases to carry on its or their business;
- a receiver, receiver and manager, administrative receiver or similar officer is appointed in respect of the Customer or any Guarantor;
- any distress, attachment, execution or other legal process is levied, enforced or sued out on or against all or any material part of the Customer assets or those of any Guarantor and is not discharged or stayed within 14 business days; and
- a security interest becomes enforceable or is enforced.
Order means an order for Goods or services placed by the Customer with Bennetts in accordance with clause 6.
Perfected has the meaning given to that term in the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth) and all regulations made under that Act and PPSR means the Personal Property Securities Register established under the PPSA.
Privacy Act means the Privacy Act 1988 (Cth).
Purchase Money Security Interest has the meaning given to that term in the PPSA.
Security means mortgage, charge, pledge, lien, guarantee, security, Security Interest, or other encumbrance now or in the future given by the Customer.
Security Interest means any security interest under the PPSA or a mortgage, charge, lien, pledge or any other right by way of security (including a right of set-off in respect of a deposit or a right to retain funds the subject of a flawed deposit arrangement) of a creditor to have its claims satisfied prior to other creditors with or from the proceeds of any asset.
Verification Statement has the meaning given to that term in the PPSA.
Tax Invoice means the invoice issued to the Customer by Bennetts pursuant to clause 7.10 and set out in accordance with the GST Law.
Website means Bennetts’ website located at the address www.hab.com.au.
- “We”, “our” and “us” means Bennetts and “you” and “your” means the Customer.
- Defined terms have the meaning given to them by these Trading Terms unless the context otherwise requires, whether or not they bear initial capitals.
- The singular includes the plural and vice versa.
- A reference to a party includes its successors and permitted substitutes or assigns.
- A right or obligation of any 2 or more persons (other than Bennetts) is joint and several.
- All references to time, are to time in Melbourne, Australia.
- An event of Default subsists until waived in writing by Bennetts.
- No provision in these Trading Terms is to be interpreted against a party on the grounds that the party prepared that provision.
- Exclusions of conditions and warranties
In this clause consumer, consumer goods, consumer guarantee, consumer services, express warranty, fair or reasonable have the meanings given by the ACL.
- Nothing in these Trading Terms excludes, restricts or modifies any condition, warranty, right or remedy conferred on the parties by the ACL or any other applicable law that cannot be excluded, restricted or modified by agreement.
- Subject to the ACL, any representation, condition, warranty or undertaking that would be implied in these Trading Terms by statute, the general law or custom is excluded to the maximum extent permitted by law.
- For the avoidance of doubt, consumer guarantees apply to any supply of Goods where the Customer is a consumer. Bennetts’ liability in connection with consumer guarantees is not limited except as set out in this clause 3.
- Where the Customer is a consumer in relation to the supply of goods under a contract arising under these Trading Terms and those goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then to the fullest extent permitted by law Bennetts’ liability in relation to consumer guarantees, is limited in Bennetts’ sole discretion to: (i) the replacement of the goods or the supply of equivalent goods; (ii) repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- Where the Customer is a consumer in relation to the supply of services under a contract arising under these Trading Terms, and those services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then to the fullest extent permitted by law Bennetts’ liability in relation to consumer guarantees relating to those services, is limited in Bennetts’ sole discretion to: (i) supplying those services again; or (ii) payment of the cost of supplying the services again.
- Bennetts is not liable to the Customer or any other person for any indirect, incidental, special, punitive, exemplary or consequential loss or damage, loss of profits or anticipated profits, loss of revenue, economic loss, loss of business opportunity or damage to goodwill irrespective of whether the loss or damage is caused by or relates to breach of contract, statute, tort (including negligence) or otherwise, whether the possibility of such loss or damage was foreseeable, or whether Bennetts or any other person was previously notified of the possibility of the loss or damage, including without limitation any liability in connection with a claim that the Goods are not fit for a particular purpose, except in the circumstances where paragraphs 3.4 and 3.5 apply. Bennetts is not liable for any loss or damage caused to any property or person of the Customer or any other person as a result of any defect in the Goods.
- To the extent permitted by law, the Customer releases and indemnifies Bennetts, and its officers, employees, consultants and agents from and against liability in respect to the matters referred to in clause 3.6 and without limitation, the Customer shall keep Bennetts indemnified against all costs, actions, claims, proceedings and demands (including those brought by third parties) expenses and liabilities of whatsoever nature of death, personal injury, damage to property and consequential loss (including loss of profit) which may be made against the Customer or which the Customer may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods unless such costs, actions, claim, proceedings and demands shall be solely attributable to any material breach of contract or guarantee by, or negligence of Bennetts or its duly authorized employee or agent.
- The maximum aggregate liability of Bennetts for all proven losses, damages and claims arising out of the supply of Goods under these Trading Terms, including liability for breach, in negligence or in tort or for any other common law or statutory action, is limited to the sum of the amounts paid by the Customer under the relevant Order for the Goods to which the loss relates to Bennetts.
- The Customer indemnifies Bennetts for any and all loss and damage (including legal fees) arising out of or in connection to all and any claims whatsoever and howsoever arising made by any third party in connection with or arising out of the Customer’s use of the Goods and any failure by the Customer to obtain a consent necessary for Bennetts to supply the Goods.
- Upon acceptance of the Customer’s Credit Application, Bennetts in its sole discretion will determine the payment terms applicable to the Customer and Bennetts will notify the Customer in writing of those terms.
- Bennetts in its sole discretion will determine the Customer’s payment terms for Goods ordered in accordance with clause 6 as follows: (i) payment to be made in advance of delivery (Pre-paid); or (ii) payment to be made on terms as agreed between the parties (Terms).
- The Customer agrees to pay Bennetts for any Goods supplied under an Order in accordance with the applicable payment terms.
- Any payment due for any Goods supplied by Bennetts will be free of any set off or any other deduction unless agreed in writing.
- Upon Bennetts’ acceptance of an Order made in accordance with clause 6, the Pre-paid Customer must pay Bennetts for all Goods under that Order in advance of delivery, unless Bennetts has expressly stipulated in writing a different time for payment.
- Bennetts will issue to the Pre-paid Customer a quotation or a Tax Invoice and the Customer agrees to pay to Bennetts the amount for the Goods by the due date as set out in that quotation or Tax Invoice. Upon the Pre-paid Customer paying to Bennetts the amount for the Goods set out in a quotation, the Pre-Paid Customer is deemed to accept that quotation for the Goods in accordance with clause 5.5 and the quotation is taken to be a Tax Invoice. Subject to clause 6.7, upon receipt of the Customer’s payment, Bennetts is deemed to accept the Pre-paid Customer’s Order and it will process the Accepted Order and arrange Delivery in accordance with clause 7.
- The Customer may pay Bennetts the amount for the Goods on a quotation or Tax Invoice by the date due in cash, or by cheque, bank cheque, credit card, direct credit or by any other method agreed in writing by Bennetts.
- The price payable is exclusive of GST and other applicable taxes and duties except where the price is expressed to be inclusive of GST. If GST is imposed on any supply under these Trading Terms, the Customer must pay to Bennetts the additional amount equal to the GST in accordance with the relevant valid Tax Invoice.
- If the Customer fails to pay Bennetts in full on or before the due date for Delivery, then Bennetts will be entitled to cancel or withhold supply or delivery of the Goods under that Order until the Customer pays all amounts due to Bennetts in respect of that Order.
- Upon Bennetts’ acceptance of an Order made in accordance with clause 6, and Delivery of the Goods, the Customer agrees to pay Bennetts for all Goods under that Order in accordance with the payment terms applicable to that Customer as set out on the relevant Tax Invoice, unless Bennetts has expressly stipulated a different time for payment in writing.
- The Customer may pay Bennetts the amount due by cash, cheque, bank cheque, credit card, electronic funds transfer, direct credit or by any other method agreed by Bennetts.
- The price payable is exclusive of GST and other applicable taxes and duties except where the price is expressed to be inclusive of GST. If GST is imposed on any supply under these Trading Terms, the Customer must pay to Bennetts the additional amount equal to the GST in accordance with the relevant valid Tax Invoice.
- If the Customer fails to pay Bennetts in full on or before the due date for payment stated in any Tax Invoice, then without prejudice to any other rights Bennetts may have against the Customer, Bennetts will be entitled to cancel or withhold supply or delivery of further goods to the Customer until the Customer pays all amounts due to Bennetts.
- The Customer agrees to pay to Bennetts interest on any amounts outstanding under clause 4.10, such interest to be charged by Bennetts in its sole discretion and calculated on a daily basis from the due date until payment is received in full in cleared funds by Bennetts at the rate prescribed by the Penalty Interests Rates Act 1983 (Vic) plus 3% per year.
- Bennetts may recover from the Customer the amount of any enforcement costs incurred by Bennetts in recovering any outstanding amounts due to Bennetts or enforcing its rights under these Trading Terms and any security interest, including legal costs on an indemnity basis.
- Any payments received by Bennetts will be applied first to any enforcement costs, then to any interest and then toward any amount that is outstanding. Credit card payments
- The Customer acknowledges that payment by credit card involves a separate contractual relationship between the Customer and its credit card provider and the Customer agrees to comply with its contractual obligations with such provider. Credit card payments may incur a surcharge which will be notified to the Customer.
- 5. Prices and Quotations
- In the absence of a contrary express agreement between the parties, the price for Goods supplied shall be Bennetts’ price prevailing at the date of an Accepted Order and the charge for services supplied shall be Bennetts’ rates prevailing at the time of supply.
- In the absence of a contrary express agreement between the parties, all prices for Goods, including costs of delivery, are subject to change without notice.
- In the case where the Customer requests a quotation in respect of the price of the Goods, Bennetts will provide a quotation in writing to the Customer.
- A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise until Bennetts has accepted the Customer’s Order in accordance with clause 6
- A quotation is valid from the date of issue and for the period of time stated in the quotation. The Customer is deemed to accept a quotation for Goods at the price quoted by placing an Order in accordance with clause 6 or by paying to Bennetts the amount for the Goods set out in a quotation. Bennetts may vary or withdraw a quotation at any time prior to Bennetts acceptance of the Customer’s Order in accordance with clause 6.5 at the price quoted.
- Bennetts may determine in its sole discretion the method by which the Customer may place an Order as follows: (i) in person, including by telephone (Phone Orders); (ii) in writing, including by email or facsimile (Email/Fax Orders); or (iii) in writing by placing an order online at Bennetts’ Website (Online Orders).
- All Phone Orders and Email/Fax Orders are governed by these Trading Terms.
- Subject to Bennetts’ approval of the Customer for online ordering, all Online Orders are governed by these Trading Terms together with Bennetts’ Website Usage Terms (Website Usage Terms) set out on Bennetts’ Website.
- Bennetts shall not be bound by
any condition attaching to the Customer’s Order unless Bennetts expressly
accepts such conditions in writing in accordance with this clause 6. Bennetts
may in its sole discretion agree to accept from the Customer:
- an Order for Goods at a specified price agreed in writing between the parties, such Goods to be set aside by Bennetts and stored for the Customer with delivery reserved to a date agreed by the parties (Reserve Order); or
- an Order in advance for Goods at a specified price agreed in writing between the parties, such Goods to be procured by Bennetts and set aside for the Customer with delivery reserved to a date agreed by the parties (Forward Order).
- By placing an Order with Bennetts, whether in person or in writing the Customer accepts and agrees to be bound by these Trading Terms.
- The Customer’s Order constitutes an offer to Bennetts to buy the Goods. The Order must specify the type and quantity of Goods requested, the date and place for delivery of the Goods, and any other relevant instructions or information.
- All Orders are subject to
acceptance by Bennetts in accordance with this clause 6.7:
- Subject to clause 6.7(b),
Bennetts is deemed to have accepted an Order and the Order becomes an “Accepted
- it confirms its acceptance in writing by email to the Customer; or
- it does not reject the Order in whole or in part within 5 business days of Bennetts acknowledging receipt of that Order.
- If Bennetts does not acknowledge receipt of an Order, it will be taken to have rejected the Order.
- Subject to clause 6.7(b), Bennetts is deemed to have accepted an Order and the Order becomes an “Accepted Order” if:
- If the particular Goods that the Customer has ordered are not available, Bennetts may supply the Customer substituted Goods of a similar nature and quality.
- The Customer acknowledges that it may place an Order for Goods from Bennetts in person by telephone to (03) 98530328 between 9.00 am to 5.00 pm Monday to Friday (excluding Public Holidays).
- The Customer acknowledges that it may place an Order for Goods from Bennetts in writing at any time either by by email to email@example.com, or by fax to (03) 98530330.
- The Customer may register its interest on the Website to be registered as an online user in accordance with the Website Usage Terms. Bennetts may in its absolute discretion approve the Customer for online ordering and its duly authorised representative to be the Customer’s authorised online user (Authorised User). The Customer acknowledges that if so authorised the Customer and its Authorised User may place an Online Order for Goods in writing at Bennetts’ Website.
- The Customer acknowledges and
agrees that in order to be approved for online ordering and to gain access to
restricted areas of Bennetts’ Website:
- it will, and will procure that its Authorised User will, read and agree to be bound by Bennetts’ Website Usage Terms, a copy of which is set out on the Website;
- in the event of being registered as an online user by Bennetts, the Customer will nominate a person to be its Authorised User, such person to comply with any conditions that Bennetts may specify in writing in relation to the appointment of that person or any other person that the Customer may nominate from time to time;
- it will, and will procure that its Authorised User will, keep confidential any login and password details chosen at time of registration (Password), such Password to be used solely by the Customer and its Authorised User in order to place Online Orders, or to gain access to restricted information on Bennetts’ Website that is only accessible by using that Password; and
- it agrees to indemnify Bennetts against any loss and damage that may arise in the event that the Password is used by any unauthorised person.
Method of Ordering
- Delivery and Returns
- Delivery of Goods to the Customer under an Accepted Order (Delivery) will be at the Customer’s place of business or to the Customer’s agent as specified in writing to Bennetts.
- The Customer will receive a delivery document with each Delivery (Delivery Docket). The Delivery Docket will contain the despatch date and number (if any) of the Accepted Order, the type and quantity of Goods ordered, and the place for Delivery.
- The Customer agrees to pay to Bennetts all expenses of and incidental to Delivery, including but not limited to the delivery, insurance, transit and storage of the relevant Goods.
- The Customer agrees that Bennetts will be entitled to stop Goods in transit to the Customer if an event of Default occurs.
- Bennetts will make all reasonable efforts to ensure Delivery by the agreed date but Bennetts will not be liable for any delay or for any loss or damage including consequential loss or damage arising from late Delivery. The Customer agrees to accept Delivery despite any delay and to pay to Bennetts all amounts due for the Goods under an Accepted Order in accordance with these Trading Terms.
- In the case of an Accepted Order in respect of a Customer’s Reserve Order or a Forward Order placed in accordance with clause 6.4, if the Customer is unable to or does not accept Delivery as scheduled and where agreed for any reason, Bennetts may in its absolute discretion resell or resupply the Goods that were not accepted by the Customer to a third party. In the event that Bennetts incurs a loss on any such resale or is unable to resell the Goods that the Customer has not accepted, the Customer agrees to indemnify Bennetts against any loss and/or damages that it may suffer. The Customer further agrees to pay Bennetts immediately on demand a sum equal to any such loss or damages, including but not limited to additional delivery, transit or storage costs incurred or any losses resulting from damage to the Goods. A certificate signed by an officer of Bennetts will be conclusive evidence of such loss and damage.
- Unless otherwise agreed in writing Bennetts may make partial Delivery or Deliveries by instalments in any quantity that Bennetts may determine and each such partial Delivery or Delivery by instalments shall be deemed to be a separate contract and these Trading Terms shall apply to each partial Delivery or Delivery by instalments.
- The quantity and/or weight of the Goods in the Delivery will be determined by Bennetts using its own equipment prior to Delivery. A tolerance of plus or minus 3% in weight will apply if that difference is attributable to events or circumstances beyond Bennetts’ control. For the avoidance of doubt, a discrepancy in the shipped weight of the Goods received by Bennetts from its suppliers is a circumstance beyond Bennetts’ control. The Customer must notify Bennetts within 5 days of the date of Delivery of the Goods if there is any dispute as to the weight of the Goods.
- As soon as practicable after Delivery, the Customer must inspect the Goods and must within 2 business days of the date of Delivery notify Bennetts in writing of any shortfall in the Delivery, or discrepancy in expected and received Goods that ought reasonably to have been apparent on a visual inspection of the Goods. If the Customer does not provide Bennetts with such notice within 2 business days of the date of Delivery, the Customer is deemed to have accepted Delivery.
- Bennetts will issue to the Customer an invoice setting out the amount due to be paid to Bennetts (Pre-paid Customers) or the amount due and payable to Bennetts (Terms Customers) in respect of each Delivery (Tax Invoice), and the Customer agrees to pay to Bennetts any moneys that are due and payable in accordance with the applicable payment terms. If a Pre-paid Customer is issued with a quotation and pays to Bennetts the amount for the Goods set out in that quotation in accordance with clause 4.6, that quotation is deemed to be a Tax Invoice for the purposes of the GST Law.
- Once Delivery has been accepted, the Customer may not return the Goods unless they are defective or damaged in transit. Any claims for defective or damaged Goods must be notified to Bennetts in writing within 5 days of the date of Delivery. Bennetts will not be liable for any claims notified after this time. Any claim for defective or damaged Goods is subject to inspection and approval by Bennetts. Upon approval by Bennetts any return must be made within a reasonable time after approval and that return will be at no cost to the Customer.
- Title and Risk
- Risk of loss or damage to the Goods from any cause whatsoever will pass to the Customer on Delivery to the Customer or the Customer’s agent or when the Goods come under the Customer’s control in any other way.
- Once risk of loss or damage to the Goods passes to the Customer, the Customer must keep the Goods insured against theft, damage and destruction until title to those Goods passes to the Customer.
- Notwithstanding Delivery,
title to the Goods remains with Bennetts until all money due by the Customer to
Bennetts in respect of those Goods (Amount Outstanding) is paid in full
(in cash or cleared funds), until which time:
- the Goods remain the property of Bennetts;
- the Customer will hold the Goods on trust and as bailee for Bennetts; and
- the Customer must store the Goods separately from other goods in the Customer’s possession so as to prevent any deterioration, to enable them to be clearly distinguished and identified as the property of Bennetts and to be cross referenced to the particular Tax Invoice.
- Until all Amounts Outstanding have been paid to Bennetts, the Customer may sell, manufacture or process the Goods, in the ordinary course of business but may not otherwise deal, sell or part with possession of the Goods. The Customer will hold the proceeds from any sale of those Goods on trust for Bennetts and will open a separate bank account for that purpose.
- Unless otherwise advised by Bennetts in writing, any pallet, drum, container, bin, crate or other receptacle (Receptacle) used by Bennetts to facilitate delivery of the Goods is not sold to the Customer and does not become the property of the Customer. The Customer agrees to adhere to any transfer of lease or hire arrangement in relation to any Receptacle.
- If the Customer is in Default in respect these Trading Terms, upon request the Customer must return to Bennetts any Goods in respect of which there is an Amount Outstanding, or in the case of Goods that have been sold or dealt with in accordance with clause 8.4, pay to Bennetts the Amount Outstanding from the proceeds of their sale.
- Without limiting any other rights of Bennetts, the Customer agrees to do all things necessary to facilitate access to, and irrevocably authorises Bennetts and any of its representatives, servants, agents or employees, to at any reasonable time enter the Customer’s premises or any premises occupied by the Customer or the Customer’s agents upon which the Goods are housed or stored for the purpose of retaking possession of the Goods. In the event Bennetts retakes possession of the Goods, Bennetts is entitled to re-sell those Goods and to retain the proceeds of any sale free from any claim from the Customer and without prejudice to Bennetts’ rights to claim the balance of all moneys due under these Trading Terms. Bennetts is not liable for and the Customer indemnifies Bennetts for any costs, losses, damages or expenses incurred by the Customer as a result directly or indirectly of Bennetts retaking possession of the Goods.
- The provisions of this clause survive the termination of any security agreement that arises in respect of these Trading Terms.
- The Customer acknowledges and agrees that each of clauses 8 and 9 of these Trading Terms, including any Order and Tax Invoice in respect of Goods ordered by the Customer, constitute a security agreement for the purposes of the PPSA and that Bennetts may at its discretion register a Financing Statement in respect of any Security Interest created by these Trading Terms.
- The Customer charges in favour
of and gives Bennetts a security interest in:
- all Goods supplied to the Customer that are described in any Tax Invoice or Delivery and/or shipping documentation provided to the Customer and/or Order documentation that the Customer gives Bennetts, including all present and after-acquired goods held by the Customer as inventory; and
- the accounts (if any) as original collateral relating to the Goods and any other goods charged under clause 9.2(a);
- all present and after acquired property of the Customer including real property. The Customer agrees that Bennetts may lodge a caveat against any real property and agree to give Bennetts a mortgage in respect of it in registrable form if required by Bennetts. The Customer irrevocably appoints Bennetts as the Customer’s attorney by way of security for that purpose.
- The Customer agrees to do
anything which Bennetts reasonably requests for the purposes of registering a
Financing Statement or Financing Change Statement including:
- ensuring that a Security Interest is Perfected and otherwise effective and enforceable; and
- enabling compliance with the PPSA.
- Any security interest that arises under this clause is a continuing security interest and applies to all Goods and their proceeds and any accounts in relation to those Goods, and secures the due and punctual payment of all moneys payable by the Customer under these Trading Terms. It is not extinguished or in any way diminished even if the Goods or any part of them is processed or commingled with and becomes part of a product or a mass as part of a manufacturing, assembling or commingling process. Any account arising by virtue of any sale of any Goods supplied to the Customer takes effect as a transfer.
- The Customer will indemnify and upon demand reimburse Bennetts for any costs and expenses and other charges incurred by Bennetts in registering a Financing Statement or Financing Change Statement on the PPSR or releasing any property secured thereby.
- To the extent permitted by law:
- Bennetts and the Customer agree that Bennetts need not comply with the following sections of the PPSA:
- section 95 (notice of removal of accession);
- section 117(3) (obligation secured by interests in personal property and land);
- section 118(1)(b) (enforcing security interests in accordance with land law decisions), to the extent that it provides for a secured party to give notice to the grantor;
- section 121(4) (enforcement of liquid assets – notice to grantor);
- section 123(2) (notice of seizure of intangible property);
- section 125 (obligation to dispose of or retain collateral);
- section 129(2) (notice of disposal by purchase);
- section 130 (notice of disposal – notice to grantor);
- section 132(3)(d) (contents of statement of accounts after disposal);
- section 132(4) (statement of account if no disposal);
- section 135 (notice of retention);
- Bennetts and the Customer agree that section 142 (redemption of collateral) and section 143 (reinstatement of security agreement) of the PPSA are excluded; and
- for the purposes of section
115(7) of the PPSA, Bennetts need not comply with:
- section 134(2)(a); or
- section 137(3) (notice of objection).
- Bennetts and the Customer agree that Bennetts need not comply with the following sections of the PPSA:
- The Customer irrevocably waives its rights:
- to object under section 129(2)(b); and
- to receive a copy of a Verification Statement under section 157 of the PPSA in relation to any registration event referred to in section 155(a) or the right to receive a Financing Statement or a Financing Change Statement in respect of any Security Interest created by these Trading Terms or any Security or any transaction contemplated by these Trading Terms.
- If an event of Default occurs
or is continuing, Bennetts may immediately enforce these Trading Terms. Without
limitation this includes:
- retaking possession of any Goods not paid for by the Customer;
- suspending delivery of any Goods on Order and/or refusing to process any unfulfilled Order;
- enforcing any security interest;
- requiring cash on delivery;
- requiring payment of any proceeds held by the Customer in a separate account or otherwise; or
- appointing a receiver and manager of any of the Customer’s real or personal property. The Customer agrees that any such receiver and manager has the powers conferred by the Corporations Act 2001 (Cth).
- .If the Customer is in Default the Customer agrees that all moneys owed under these Trading Terms become due and payable and that Bennetts may at any time after the Default occurs demand and require immediate payment of all moneys due under these Trading Terms, enforce any Security granted under these Trading Terms and exercise any of the powers conferred by these Trading Terms, including at law or in equity. The Customer appoints Bennetts as the Customer’s attorney by way of security for the purpose of Bennetts exercising any of the powers the Customer gives Bennetts under these Trading Terms.
- .In the event of a Default by the Customer in performing of any of the Customer’s obligations in connection with a supply of Goods under these Trading Terms the Customer agrees that (as between the parties to these Trading Terms) Bennetts is not obliged to give notice to any other secured party with interests in the same collateral or to any other third party of any enforcement or recovery action that it takes or which it may take with respect to its security interest in any of the Goods.
- If the Customer has not been paid for the sale of Bennetts’ goods by any of its customers, Bennetts may, at its option, in addition to the powers in s 120 of the PPSA, collect that account on giving the Customer’s customer notice in writing to that effect. Bennetts will be entitled to issue proceedings in the Customer’s name against its customer for recovery of that account for Bennetts’ benefit. The Customer indemnifies Bennetts in respect of any such action and proceedings. This indemnity includes any legal fees and expenses that Bennetts incurs in order to enforce its rights, on an indemnity basis. For the purposes of this clause, the Customer must keep proper records and accounts in respect of such unpaid sales, including the dates of sale, price, amount and identity of its customers and Bennetts’ Goods.
- Bennetts may in its discretion despite s 14(6) of the PPSA apply any moneys received in respect of any Purchase Money Security Interest (PMSI) obligations of the Customers on a pro rata basis.
- If an event of Default occurs or is continuing, Bennetts may immediately enforce these Trading Terms. Without limitation this includes:
- Negative pledge
- The Customer agrees not to grant any security interest over any of the Customer’s personal property except in the ordinary course of business.
- The Customer agrees not to grant a security interest in any account as
- Force Majeure
Bennetts is not liable for any delay, default, loss or damage or the failure to perform any obligation in the Customer’s favour arising as a result of a Force Majeure Event.
Any security agreement that arises under these Trading Terms is confidential. Despite this, the Customer agrees that Bennetts may disclose any information concerning the Customer to any interested person under s 275 of the PPSA. The Customer agrees not to exercise its rights to make any request of Bennetts under section 275 of the PPSA.
- Health and Safety Compliance
The Customer agrees that it is the Customer’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps are taken in relation to the storage, handling and use of the Goods and, where information is supplied to the Customer by Bennetts on potential hazards relating to the Goods, to bring such information to the attention of the Customer’s employees, agents, sub-contractors, visitors and customers. Without prejudice to the forgoing, it is the Customer’s responsibility to provide safe facilities for the receipt and storage of the Goods and to comply with all applicable health and safety regulations immediately on delivery of the Goods to the Customer’s premises and/or to the Customer’s storage facilities.
- Errors in Bennetts’ documents
Clerical or computation errors and misprints in any Bennetts documents, including catalogues, price lists, delivery dockets, invoices, statements or credit notes, may be corrected by Bennetts reissuing the document or by Bennetts otherwise giving notice of the error or misprint to the Customer with reference to the original document.
- The Customer will tell Bennetts if the Customer changes its name, registered office or, if any of the Customer’s directors change, it becomes a trustee of any trust or the constitution of any partnership of which the Customer is a member changes, within 7 business days of any such change.
- Any certificate signed by Bennetts, or any of its directors or any person authorised by it as to the amount due and payable by the Customer is sufficient evidence of the Customer’s liability to pay Bennetts under these Trading Terms as at the date of any such certificate.
- If any provision of these Trading Terms is unenforceable for any reason, it will not invalidate any other provisions, which will remain in full force and effect despite that invalidity.
- These Trading Terms as varied from time to time together with the Credit Application and any guarantee in connection with the Credit Application contain the entire agreement between the parties in respect of the supply of Goods to the Customer.
- The Customer acknowledges
that Bennetts has the right to revise and amend these Trading Terms from time
to time to reflect changes in market conditions affecting business, changes in
technology, changes in payment methods, changes in relevant laws and regulatory
requirements and changes in its systems capabilities. Any notice to vary these Trading
- shall be given to the Customer by Bennetts in accordance with the notice provisions set out in clause 19; and
- the Customer will be deemed to have accepted the variation if it does not advise Bennetts in writing that it does not agree to the variation within 14 days of receipt of the notice.
- Bennetts may at any time set off any amount it owes the Customer against any amount payable by the Customer to Bennetts whether or not the amount the Customer owes Bennetts is due and payable (whether actually or contingently).
- Governing law
These Trading Terms are governed by the laws in force in the State of Victoria, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts of Victoria in respect of all matters arising out of or relating to these Trading Terms.
- 19. Notices
- .Any notice required or permitted to be given under these Trading Terms may be given by a party, including by its directors or an authorised representative of that party.
- It is the responsibility of the Customer to notify Bennetts of the names of any person who have authority to act as the authorised representative of the Customer for any purpose including, without limitation, for the purposes of placing Online Orders on the Customer’s behalf from time to time.
- Any notice required by one party to the other must be in
writing and shall be treated as duly given and received
- it is delivered personally by that other party;
- sent by e-mail to the address advised to Bennetts by the Customer for a credit facility or in any application to be registered as an online user of Bennetts or as otherwise notified to the other party and is taken to be received on the day of transmission when confirmation is received from the relevant internet service provider that the transmission was received in full and without error; or
- sent by pre-paid post to that other party’s registered office or to the address specified in any Application made to Bennetts by the Customer for a credit facility or in any application to be registered as an online user of Bennetts or as otherwise notified to the other party, (in which case it is taken to be received 3 days after the date of posting).
For the purposes of any payment obligation under these Trading Terms, time is of the essence.
- Survival of indemnities
- Each indemnity and payment obligation of the Customer under these Trading Terms is a continuing obligation, separate and independent from all other obligations, and survives termination of these Trading Terms.
- It is not necessary for Bennetts to incur expense or make a payment before enforcing a right of indemnity.
- Default and Termination
- Default Notice
If an event of Default, other than an Insolvency Event occurs in relation to the Customer, Bennetts may give a notice(Default Notice) to the Customer specifying the event of Default and requiring the Customer to remedy the event of Default within 10 Business Days after the Default Notice is given to the Customer.
- Termination notice
If the Customer:
- receives a Default Notice and does not remedy the event of Default within 30 days;
- receives a Default Notice and the event of Default referred to therein is not capable of remedy; or
- receives a Default Notice on 3 occasions in any period of 6 months,
then Bennetts, without limiting its other rights and remedies, may terminate these Trading Terms by giving to the Customer notice with immediate effect.
- Insolvency Event
If the Customer is the subject of an Insolvency Event then Bennetts, without limiting its other rights and remedies, may terminate these Trading Terms by giving notice to the Customer with immediate effect.
- Default Notice
- Consequences of termination
- Outstanding Accepted Purchase Orders
- If these Trading Terms are
terminated then the Customer agrees that all Goods relating to all outstanding
Accepted Orders that remain undelivered at the date of termination may, in
Bennetts' sole discretion:
- be delivered in accordance with the outstanding Accepted Orders subject to payment in advance by the Customer upon demand by Bennetts;or
- the outstanding Accepted Orders may be cancelled and the remaining undelivered Goods relating to the cancelled orders may be resold or resupplied by Bennetts to a third party. In the event that Bennetts incurs a loss on any such resale or is unable to resell the Goods under a cancelled outstanding Accepted Order, the Customer agrees to indemnify Bennetts against any loss and/or damages that it may suffer. The Customer further agrees to pay Bennetts immediately on demand a sum equal to any such loss or damages, including but not limited to additional delivery, transit or storage costs incurred or any losses resulting from damage to the Goods. A certificate signed by an officer of Bennetts will be conclusive evidence of such loss and damage.
- The Customer agrees to pay to Bennetts any moneys that are due and payable in respect of Accepted Orders delivered under clause 23.1(a) in accordance with the appropriate payment terms upon Bennetts providing the Customer with a Tax Invoice in accordance with clause 7.10.
- If these Trading Terms are terminated then the Customer agrees that all Goods relating to all outstanding Accepted Orders that remain undelivered at the date of termination may, in Bennetts' sole discretion:
- Consequences generally
Subject to clause 23.4, on termination of these Trading Terms, the Trading Terms are at an end as to their future operation except for the enforcement of any right or claim that arises on, or has arisen before termination.
- Specific consequences
On termination of these Trading Terms the Customer must pay to Bennetts any moneys that are due and payable in respect of any Goods Delivered in accordance with the applicable payment terms set out in the Tax Invoice for those Goods.
- Clauses surviving termination
- Despite any other provision of this Agreement, this clause 23 and clauses 1 (Introduction), Error! Reference source not found. (Definitions and Interpretation), 3 (Exclusions of conditions and warranties), 8 (Title and Risk), 9 (Security), 10 (Enforcement), 13 (Confidentiality), 14 (Privacy), 21 (Survival of Indemnities) and 24 (Dispute resolution) survive the expiry or termination of this Agreement.
- In addition to the specific clauses referred to in clause 23.4(a), the obligations under these Trading Terms which are expressed to or, by their nature, survive expiry or termination of this Agreement, will survive expiry or termination of this Agreement and are enforceable at any time at law or in equity.
- Outstanding Accepted Purchase Orders
- Dispute Resolution
- Any dispute or difference
arising in connection with these Trading Terms (Dispute) must be
resolved in the following manner:
- a written notice of the Dispute, accurately identifying and describing the matter or matters in dispute will be given to the other party (Notice of Dispute);
- in the event of a Notice of Dispute being issued by either party, a duly authorised representative with authority to resolve the dispute of each party will meet at a mutually agreed location, within 7 days and use their respective best or reasonable endeavours to resolve the dispute; and
- if a meeting does not take place or a resolution is not obtained within 28 days of the Notice of Dispute being issued then either party may submit the Dispute for consideration to a mediator nominated by the Chairman of the Victorian Bar Council (Mediator).
- Each party to the Dispute will bear its own costs in connection with the mediation.
- Half of the costs of the mediation, including the costs of hiring the mediation venue and the Mediator’s fees, will be borne by the Customer and half of the costs will be borne by Bennetts.
- The Mediator’s determination in relation to the matter shall be final and binding on the parties to the Dispute.
- Any dispute or difference arising in connection with these Trading Terms (Dispute) must be resolved in the following manner:
(H.A. Bennett & Sons Pty Limited - Credit Application & Trading Terms June 2015)