By applying for or using the credit facility, the Customer acknowledges acceptance of these Conditions and ensures their observance by the Customer until the credit facility is either cancelled, terminated or otherwise ceases to be valid.
The Customer acknowledges that, in the event of such cancellation, termination or invalidity, it continues to be bound by all obligations and liabilities incurred by it before such cancellation, termination or invalidity.
These terms and conditions create a security interest in favour of Fraser for the purposes of the Personal Property Securities Act 2009 (Cth).
1) Definitions and interpretation
Unless the context requires otherwise:
Application means the form to which these Conditions are attached, which is to be filled in by the Customer and returned to Fraser.
Conditions means these Credit Account Terms and Conditions and any new or varied terms and conditions notified to the Customer by Fraser from time to time.
Consequential Loss means loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay, or any consequential, special or indirect loss or damage, whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence), statute or otherwise.
Credit Guarantee means any guarantee, however described, required of the Customer and/or its directors, beneficiaries, shareholders, parents and unitholders by Fraser in connection with the provision of credit or supply of Goods and Services to the Customer.
Credit Limit means the amount determined by Fraser from time to time.
Customer means the person(s), company or business entity, their successor and assigns names in the Application and includes any Guarantors of the Customer. If more than one person is named, each shall be jointly and severally liable under these Conditions.
Fraser means Fraser Motorcycle Group Finance Pty Ltd (ABN 51 600 451 358) or Related Body Corporate of Fraser Motorcycle Group Finance Pty Ltd (ABN 51 600 451 358).
Fraser Group Supplier means all Related Body Corporate of Fraser including, but not limited to, NF Importers Pty Limited ABN 16 000 830 811, Fraser Motorcycles Sydney Pty Limited ABN 53 000 714 385, Fraser Motorcycles Perth Pty Limited ABN 15 057 119 418, Fraser Motorcycles Wollongong Pty Limited ABN 94 070 411 835, Fraser Motorcycles Newcastle Pty Limited ABN 48 000 500 005, NF Importers New Zealand Pty Limited (New Zealand Company Number 1131257) and any New Fraser Entity.
Goods means any goods supplied by the Supplier and all related or ancillary goods.
Guarantor(s) means the person(s), company or business entity, their successors and assigns named in the Credit Guarantee.
GST means the Goods and Services Tax levied on any supply made under these Conditions under the A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time or any similar tax resulting in an increase in the tax payable on the supply of goods by Fraser to the Customer.
Insolvency Event means, for the Customer, as applicable, being in liquidation or provisional liquidation, bankruptcy or under administration, having a controller (as defined in the Corporations Act 2001) or analogous person appointed to the Customer or any of the Customer’s property, being taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand, being unable to pay the Customer’s debts, dying, ceasing to be of full legal capacity or otherwise becoming incapable of managing the Customer’s own affairs for any reason, taking any step that could result in the company becoming an insolvent under administration (as defined in section 9 of the Corporations Act 2001), entering into a compromise or arrangement with, or assignment for the benefit of, any of the Customer’s members or creditors, or any analogous event.
Loss means any expense, cost or damage of any kind and includes Consequential Loss and a fine or penalty imposed by a statutory or other authority.
New Fraser Entity means an entity that becomes a Related Body Corporate of Fraser after this application for credit is made by the Customer.
Real Property means all real property interests held by the Customer now or in the future.
Related Bodies Corporate has the same meaning as in the Corporations Act 2001.
Services means any services provided by the Supplier and all related or ancillary services.
Supplier means, in connection with the supply of any Goods or Services, the Fraser Group Supplier making the supply to Customer.
Supplier Terms and Conditions means any terms and conditions of quotation and supply, however described, notified by the Supplier to the Customer (whether as they appear below, on an invoice or quote, through the Supplier’s website, docket or otherwise or a separate supply agreement (however described) in the Supplier’s standard form entered into in writing between the Supplier and Customer).
Singular words include the plural and vice versa. A reference to a person includes a company, partnership, joint venture, government body, association or organisation whether registered or not. Including means ‘including without limitation’.
2) Acknowledgements and Authority – Privacy Act 1988 (as amended)The Customer:
a) Applies to Fraser for credit on the sale of Goods or provision of Services;
b) Acknowledges Fraser may accept or reject the Application in its absolute discretion;
c) Declares that the information provided above is true and correct and has been provided to induce Fraser to grant the Application;
d) Agrees that these conditions (as varied, if any, from time to time) form part of every transaction between Fraser, Supplier and the Customer;
e) Agrees that Fraser may vary these conditions by written notice sent by ordinary mail or email to the last known address or email address of the Customer;
f) And each of the officers of the Customer and any Guarantor/s gives consent to Fraser to:
i) Disclosing and obtaining personal information to and/or from another credit provider or credit reporting agency including information relating to the commercial creditworthiness and personal creditworthiness of them;
ii) Using any information obtained for the purposes of assessing this credit application, collecting payments due under these Conditions and notifying other credit providers of the commercial creditworthiness of them. At any time Customer and any Guarantor/s may gain access, uponrequest, to the information Fraser hold about them;
g) Acknowledges that Fraser may disclose information about Customer and any Guarantor/s, where it has a duty to the public to disclose that information, and where it is required by law.
The Directors/Partners/Shareholders/Unitholders/Beneficiaries/Proprietors acknowledge that the consent hereby given shall remain in force until all monies have been paid in full and the Customer no longer has an open account with Fraser.
3) Structure of this document
a) These Conditions are intended to regulate key trading terms including the extension of credit in connection with the supply of Goods or Services by Fraser Group Companies to the Customer.
b) The terms set out in Part A of these Conditions are incorporated by reference as part of the Supplier Terms and Conditions, if any. Those terms are legally binding between the Supplier and the Customer and should be read together with the Supplier Terms and Conditions. To the extent of any inconsistency, the Supplier Terms and Conditions (excluding the incorporated Part A of these Conditions) prevail over these Conditions. To the extent that there are no specific Supplier Terms and Conditions, Part A of these Conditions shall be the terms of any supply by the Supplier to the Customer.
c) The terms set out in Part B form an agreement directly between the Customer and Fraser. Those terms are legally binding between the Customer and Fraser.
PART A – Supplier Terms and Conditions (“Terms”)
4) Agreement
a) Except to the extent otherwise explicitly agreed in writing between the parties, these Terms (and, if applicable, the Fraser Credit Application Form completed by the Customer (and Credit Guarantees, if applicable)) govern the entire relationship between the Supplier and the Customer in connection with the Goods and/or Services and will prevail over any other document (including purchase order terms or procurement terms provided by the Customer or terms on the back of delivery dockets to the extent inconsistent with these Terms) from time to time.
b) To the extent of any inconsistency between the Credit Application Form, the Credit Guarantees and these Terms, these Terms prevail.
c) The Customer acknowledges that it has not relied on any representation, inducement, warranty or promise which is not set out herein.
d) These Terms may only be varied by written notice from Supplier sent by ordinary mail or email to the last known address or email address of the Customer.
5) Operation of these Terms
These Terms apply to Orders made by Customers directly to the Supplier.
6) Ordering
a) A supply of Goods and/or Services by the Supplier to the Customer shall be initiated by an order by the Customer either:
i) in writing, whether:
(1) by email;
(2) by facsimile; or
(3) by completing an order form and presenting same:
A. in person; or
B. by mail; OR
ii) electronically: using Fraser’s electronic ordering system, Autoline (aka Kerridge Rev 8)
iii) such Order shall allow for the required lead-time prior to the delivery date, unless it is an Non-Standard Order in accordance with clauses 9 and 10 below.
b) Orders and enquiries may be made:
i) by facsimile to: 02 8741 3899;
ii) by phone: 02 8741 3831 or 02 8741 3836 or 02 8741 3824;
iii) by email: aftersales@ducati.com.au;
iv) in person: Bray Ipek (MRP and After-sales Manager) or Troy Dunn (Dealer Support, Parts and Accessories)
v) made using Fraser’s electronic ordering system Autoline (aka Kerridge Rev 8).
c) The Customer covenants and warrants that:
i) it is entitled to purchase any Goods and/or Services for which it has placed an Order in accordance with any applicable legislation, statute or regulation; and
ii) the representative making the Order is authorised to do so; and the Customer indemnifies the Supplier in relation to any action, Loss or proceeding which may be brought against the Supplier as a result of a breach of this warranty by the Customer.
d) Orders must meet any minimum quantity order requirements set by the Supplier, in its absolute discretion, from time to time.
7) Validity of Quotations and Backorders
Any quotations provided by the Supplier for the provision of Goods and/or Services constitute an offer open to acceptance by the Customer within seven (7) days from the date on the quotation and any such acceptance must be on the basis that supply of the Goods and/or the provision of the Services will occur within twenty-eight (28) days of the date of the quotation.
Any Orders of parts or accessories which require longer than normal delivery times (given a requirement to backorder or a lack of stock on hand at the time of Order) (“Delayed Delivery Orders”) will be a binding Orders which the Customer will be required to accept and pay for upon their provision by the Supplier and despite the delay.
Supplier shall be entitled, at its discretion, to require either payment in full, or a deposit, for any Delayed Delivery Orders.
8) Delivery Lead Times
a) Delivery for Orders placed will vary, depending on the type and quantity of Good and/or Services to be provided by the Supplier, the time at which the Order is placed and the delivery/service location.
b) The Customer may request Non-Standard Orders.
c) The Supplier will give priority to Non-Standard Orders and will aim to deliver Goods and/or supply Services to the Customer as soon as possible.
d) Preparation, delivery and supply requirements for non-standard Goods and/or Services required by the Customer will be on terms agreed between the parties at the time of placement of the Order for the Good and/or Service.
e) The Supplier will use reasonable endeavours to deliver Goods and/or Services in accordance with the Customer’s schedule.
f) Should delivery of the Goods and/or Services be early or delayed for any reason beyond the control of the Supplier, or as a result of any cause which the Customer is or should reasonably have been aware of, all Loss arising will be the Customer’s responsibility and the Customer shall indemnify the Supplier in respect of such Loss.
9) Delivery Terms
a) Place of delivery of the Goods and/or supply of Services shall be advised by the Customer to the Supplier at the time of placement of the Order for the Good and/or Service.
b) Goods are shipped via a transportation mode selected by the Supplier at its absolute discretion.
c) Standard Orders to metropolitan areas will incur no freight charge.
d) Where delivery is provided by the Supplier in association with the supply of Goods:
i) upon to the loading of the Goods on the delivery vehicle for transportation, at the Supplier’s warehouse, all risk in relation to those materials shall pass to the Customer.
ii) the Customer is responsible for ensuring safe and adequate access to the delivery location and all other aspects of safety at such location.
iii) the driver making any delivery may refuse to complete the delivery, if not satisfied with the Customer’s compliance with (ii) above, however, making a delivery shall not constitute an assessment of the safety of the location and in no way relieves the Customer of its obligations under these Terms, including those relating to safety.
e) Where materials are sold ex-bin or depot, risk passes to the Customer when the material is loaded on the Customer’s vehicle.
10) Additional Delivery and Handling Charges
a) Fees for the provision of Goods will be invoiced to the Customer in addition to the Price, freight and other charges for Non-Standard Orders outside the Supplier’s normal delivery plan at a rate which is commensurate to the required service and as advised by Supplier at the time of Non-Standard Order.
b) Additional freight charges (for both delivery and return to the Supplier) will be invoiced to the Customer in addition to the Price and freight charges where delivery to the delivery address nominated by the Customer cannot be made or where the delivery address is outside the normal standard metropolitan delivery area.
c) Where Good is delivered on Supplier pallets, a pallet charge may apply, which is fully refundable upon pallet return.
d) The Supplier reserves the right to charge a fuel surcharge in relation to any delivery.
11) Payment Terms
a) Non-account Customers must pay for the Goods and/or Services in immediately available funds prior to delivery, unless the Supplier agrees otherwise in writing.
b) Account Customers must pay for the Goods and/or Services by the end of the month following the month of invoice.
c) For Customers making payment via credit card, the merchant fee will be charged to the Customer.
d) The Customer acknowledges that the Goods and/or Services will be paid for in full without any retention or set-off.
12) Pricing
a) All Prices are exclusive of any statutory or Government charges. Should any such charges or any other tax become applicable to the Goods and/or Services the subject of an Order, such tax or charge shall be charged to and paid for by the Customer in addition to the price otherwise payable under the Order.
b) If Goods and Services Tax (“GST”) is payable by the Supplier on any sale the Customer will pay the Supplier an amount equal to the GST. The Supplier will supply all Customers with a tax invoice showing the GST component and any other charges incurred by the Customer under these Terms.
c) If the introduction of a regime relating to the emission, removal, mitigation, reduction, avoidance or sequestration of greenhouse gases (“Carbon Scheme”) results in any additional financial burden whatsoever to the Supplier arising from the manufacture or supply of the Goods and/or Services, the Supplier may increase Prices to recover the reasonable net costs incurred arising from such Carbon Scheme.
d) The Prices and specification of Goods are subject to change without notice.
e) The Price shall include the cost of packaging but shall not include costs of storage and insurances nor any other expenses unless otherwise stated in these Terms or agreed between the parties.
f) Pricing made known to the Customer at the time of Order are based on:
i) all materials being available from the Supplier’s normal point of supply with respect to the locations of the supply/performance of the Goods and/or Services (as determined by the Supplier) or as otherwise specified in these Terms. Should conditions beyond control of the Supplier necessitate supply from any other point of supply any resultant increase in cost will be paid for by the Customer.
ii) Unless otherwise stated herein, this agreement is based on the whole of the supply/performance of the Goods and/or Services being conducted during normal business hours (normal loading hours are 9 a.m. to 5 p.m. Monday to Friday (excluding public holidays)). Should it be necessary to supply/perform the Goods and/or Services outside normal business hours on a Saturday, Sunday or public holiday, then additional charges will apply.
13) Return of Goods for Credit
a) Subject to clauses 13(b), 13(c) and 13(d), the Supplier will accept return of Goods for credit in circumstances where:
i) the Good was delivered in error by the Supplier and the Customer notifies the Supplier within twenty-four (24) hours of receipt;
ii) the Good was damaged prior to its loading on the delivery vehicle at Supplier’s warehouse – the damage must be noted on the Customer’s copy of the delivery documentation and countersigned by the delivery driver (noting the damage was evident prior to pick up from Supplier’s warehouse); or
iii) the Good is defective and the Customer has notified the Supplier within twenty-four (24) hours of receipt;
AND the following criteria has been met:
(i) the Customer had obtained prior authorisation by requesting the Supplier to issue a return authority;
(ii) a return authority accompanies each Good being returned(any Good received by the Supplier without a return authority, will be destroyed by the Supplier and no credit will be issued by the Supplier); and
(iii) a Quality Assurance representative of the Supplier has inspected and confirmed legitimacy of defective Goods returned.
b) The Supplier will not accept a return of a Good for credit in the following circumstances:
i) the Good is returned in packaging that is damaged, written upon or otherwise marked and/or is in an unsalable condition;
ii) the Good is returned more than five (5) days after the return authority was issued;
iii) the Good is returned in opened packages/cartons;
iv) the Good has been made or labelled to a specific order; and/or
v) any other requirement in this clause 13 has not been satisfied.
c) All authorised returns will incur a restocking fee of 5% of the Order amount.
d) The Supplier is under no obligation to accept any Goods ordered in excess of the Customer’s requirements for return or credit.
e) The Supplier acknowledges and agrees that the Supplier’s only obligation with respect to Goods which have be installed will be in line with the Supplier’s after sales warranty and no return (for credit or otherwise) will be accepted by the Supplier in any such circumstance.
14) Inspection and Proof of Delivery
a) The Customer shall inspect the Good immediately upon receipt and notify of any discrepancies and/or damage to the Goods and/or Services within twenty-four (24) hours of pick-up or delivery. Thereafter details indicated on the Supplier’s invoice or delivery docket or copies thereof shall be conclusive evidence of quantity, description, date, time and place of delivery of the Good.
b) Requests by the Customer for proof of delivery will only be accepted by the Supplier within twenty-four (24) hours from the date of statement, and proof of the delivery shall constitute proof of the total delivery indicated on the Supplier’s delivery documents.
c) Provision of authority to leave by the Customer to the Supplier in writing enables the Supplier to leave Good without inspection and eliminates the need for a signature from the Customer. The risk for the Good passes to the Customer immediately upon loading Goods on delivery vehicle at the Supplier’s warehouse.
15) Warranties
a) The Supplier warrants that:
i) All Goods supplied to the Customer under these Terms, unless otherwise notified at time of Order or supply,:
(1) comply with the Order or any amended Order for the Goods;
(2) are fit for the purpose for which they are intended;
(3) are of merchantable quality;
(4) are free from defects;
(5) are new; and
(6) will be supplied free from all encumbrances;
ii) in complying with these Terms, the Supplier will at all times:
(1) exercise all care, skill, attention and diligence and will employ techniques of a high standard in accordance with best industry practice; and
(2) ensure that every person utilised by the Supplier is competent, appropriately qualified and is, where relevant, registered with or licensed by the appropriate statutory or professional body; and
(3) comply with all law;
b) A Good distributed by, but not manufactured, by the Supplier is warranted by its manufacturer and Customer accepts such warranty, if any, as the sole and only warranty with respect to the Good.
c) Each unit of equipment supplied by the Supplier shall be subject to the warranties notified to the Customer at the date of the purchase of the equipment.
d) Except to the extent required by law and without limiting the generality of clause 32(c), the Supplier makes no other express or implied warranties or guarantees.
16) Customer Obligations
a) The Customer will be solely responsible for the proper use and administration of all Goods, including the decision to use them. Nothing in these Terms shall imply that the Supplier is in any way responsible for ensuring the appropriateness or correctness of the Good specifications of any Goods.
b) The Customer has no entitlement to credit unless in the Supplier’s sole discretion the Supplier extends credit to the Customer. If in a particular case, the Supplier gives the Customer credit, the Supplier still reserves the right at any time and for any reason in the Supplier’s sole discretion to refuse to supply any further Goods or Services to the Customer and to refuse to supply any Goods or Services or both to the Customer on credit terms. If the Supplier does decline to give the Customer further credit then that decision, subject to the terms of this clause 16(c), does not affect the credit terms which apply to any amounts the Customer then owes to the Supplier.
c) If the Customer fails to comply with any of these Terms or in respect of any obligation to pay money to another Fraser Group Supplier when due, suffers an Insolvency Event or makes any misrepresentation to a Fraser Group Supplier, the balance of the Customer’s account to the Supplier will become due and payable immediately.
d) The Customer agrees that it must:
i) pay, without any deduction or setoff, the price charged by the Supplier for Goods or Services supplied to the Customer plus any additional fees and charges applicable thereto in accordance with clause 11 A certificate signed by Supplier’s Accounts Co-Ordinator stating the amount owed by the Customer shall be conclusive proof of the amount owed unless the Customer proves otherwise. If the Customer consists of one or more persons or entities then each person or entity is jointly and severally liable.
ii) pay any and all Government charges and duties of any kind assessed on, incurred in or in connection with:
A. this document or fee to register or maintain any security interest held by Supplier in respect of Goods or Services supplied to the Customer;
B. the provision of credit by Supplier including without limitation all stamp duties, GST, financial institution duties, and any other charges or duties of a like kind.
iii) pay all fees (including an administrative fee in an amount to be set from time to time by Supplier) for all costs incurred as a result of any cheque or electronic banking transaction being dishonoured for whatever reason.
iv) ensure that its Credit Limit is not exceeded. Any excess is immediately payable to Supplier as a debt due and owing on demand. Supplier reserves the right to suspend the Customer’s accounts and to refuse the supply of Goods on credit, without notice, until such time as any excess is paid and the account is within the Credit Limit and/or in the event of breach of any term of these Conditions.
v) advise the Supplier in writing of the occurrence of any Insolvency Event, any change in its name, ownership or control, or any step being taken to sell an asset or assets (separately or together having a value being greater than 20% in value of its gross assets) as soon as practicable and not later than within two (2) days of such event, change or step occurring. The Customer acknowledges that, despite any such event, change, or step the Customer remains liable to pay the price for all Goods or Services supplied.
17) Application of Payments
Any time a payment is made to the Supplier by the Customer or any Guarantor, irrespective of whether the payment is made under or in connection with a specific invoice, quotation, order form or other agreement between the parties, the Supplier may apply that payment:
a) firstly, to satisfy an obligation that is not secured;
b) secondly, to satisfy an obligation that is secured, but not by a purchase money security interest pursuant to the PPSA (‘PMSI’);
c) thirdly, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
d) fourthly, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source,
or, despite the foregoing, any manner the Supplier sees fit.
18) Overdue accounts and security
a) Any amount not paid by the due date will incur interest at a rate of 5% above the Reserve Bank of Australia Cash Rate calculated daily and compounded monthly but in no circumstances will the interest charged exceed 20% per annum.
b) The Customer agrees to pay all costs and expenses (including legal costs, commissions paid by the Supplier or its Related Bodies Corporate to any commercial or mercantile agent and dishonour fees) incurred by the Supplier, on an indemnity basis, in connection with the recovery of overdue amounts and enforcing the charge in clause 18(c) and may apply the funds in accordance with clause 17 above.
c) As security for any amounts due to the Supplier from time to time, the Customer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real Property to the Supplier.
d) Without limiting the generality of the charge in clause 18(c), the Customer, agrees, on request by the Supplier, to execute any documents and do all things reasonably required by the Supplier, (including if a beneficial owner, as beneficial owner under the Conveyancing Act 1919 (NSW) or of any analogous implied term under the applicable governing law) to perfect the charge given in clause 18(c) including registering a mortgage security over any Real Property. The Customer appoints Supplier to be the Customer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Customer indemnifies the Supplier, on an indemnity basis, against all costs and expenses incurred by the Supplier in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents.
e) The Customer consents unconditionally to the Supplier lodging a caveat or caveats noting its interest in any Real Property.
f) The Supplier appoints Fraser as its non-exclusive agent to collect any debts owed by the Customer that are due from to time to the Supplier.
g) A statement in writing signed by an authorised officer of the Supplier or Fraser setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.
h) The Supplier acknowledges that any payment made to Fraser for a debt owed to the Supplier is in full satisfaction of the debt owed to it, to the extent of the payment made.
19) Retention of title
a) The Supplier retains legal and equitable title in any Goods supplied to the Customer until payment in full for, or in connection with, the supply of the relevant Goods has been received by the Supplier. Until payment in full has been received, the following terms apply.
b) Notwithstanding that title in the Goods remains with the Supplier until payment has been received in full, the Customer may sell such goods or use the Goods in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of the Supplier. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for the Supplier and the Customer is under a duty to account to the Supplier for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to the Supplier for Goods supplied.
c) Until Goods are sold, the Customer must keep the Goods safe, fully insured and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of the Supplier, store them in such a way they are clearly identified as the property of the Supplier and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by the Supplier.
d) The Supplier is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods any of its rights whether those rights are as owner and/or unpaid Seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, the Supplier and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by the Supplier and to indemnify the Supplier and its agents for any liability arising from any entry upon such third parties’ premises or vehicles. The Supplier and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.
e) The Supplier shall have the right to re-sell or otherwise dispose of Goods recovered without reference to the Customer.
f) The Customer acknowledges that until the Customer’s total indebtedness to Supplier is discharged, the Customer shall hold the Goods as bailee for Supplier.
g) This reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
20) Security interest
a) The retention of title arrangement described in clause 19 constitutes the grant of a PMSI by the Customer in favour of the Supplier in respect of all present and after- acquired Goods supplied to the Customer by the Supplier.
b) The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Supplier’s PMSI is a perfected security interest.
c) The Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its PMSI.
d) For any Goods supplied that are not goods that are used predominately for personal, domestic or household purposes, the parties agree to contract out of the application of ss 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 or 143 of the PPSA and Part 4.3 (other than those in Division 6 of Part 4.3) in relation to the Goods.
e) The Customer hereby waives any rights the Customer may otherwise have to:
i) receive any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130, 132, 135, 157 or all section in Part 4.3 (other than those in Division 6 of Part 4.3);
ii) apply to a Court for an order concerning the removal of an accession under section 97;
iii) object to a proposal of the Customer to purchase or retain any collateral under ss 130 and 135; and
iv) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest the Supplier may have in Goods supplied to the Customer from time to time.
f) For the purposes of this clause “PPSA” means the Personal Property Securities Act 2009 (Cth). The expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA. References to sections are to sections of the PPSA.
21) Limitation of liability
If the Customer is not a “Consumer”, the Supplier shall not be liable in any circumstances:
a) for any damage to any property of whatsoever kind resulting from Goods and/or Services supplied or performed in accordance with these Terms;
b) for any defects in the Goods and/or Services unless the Customer notifies the Supplier within twenty-four (24) hours of the date of delivery of the materials or the supply of the services specifying the defect, which notice shall be a condition precedent to any right to recover by the Customer;
c) for any Loss arising from delay;
d) for any Consequential Loss,
e) for any Loss arising from materials supplied by the Supplier being placed or installed by others,
and, subject to clause 22, to the maximum extent permitted by law and subject to clauses 22 and 32(c), the Supplier’s total liability arising out of or in connection with its performance of its obligations pursuant to these Terms and the , or arising out of or in connection with the supply of specific Goods or Services (including pursuant to or for breach of these Terms and the Conditions or repudiation thereof, under statute, in equity or for tort, including negligent acts or omissions) is limited as follows:
A. the Supplier shall have no liability to the Customer for any Consequential Loss;
B. the Supplier’s total aggregate liability for Loss, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Supplier for the specific Goods or Services that gave rise to the Loss in question. The limitations and exclusions in this sub-clause 21(b) do not apply to the extent that any Loss is directly attributable to:
(i) the personal injury or death caused by the Supplier’s default, breach of these Terms or the Conditions negligence; or
(ii) fraud by the Supplier.
Each party must take reasonable steps to mitigate any Loss it suffers or incurs.
To the maximum extent permitted by law, the Customer hereby indemnifies and forever holds harmless the Supplier from all Losses caused or contributed to by any negligent and/or wilful act or omission or any breach of these Terms by the Customer; or by the Supplier arising from supplying or performing the Goods and/or Services in accordance with these Terms.
22) Limitation of liability under Australian Consumer Law Guarantees
The Customer warrants that the Goods and/or Services it will acquire from the Supplier will be obtained for either the purpose of re-supply (in an altered form or condition or to be incorporated into other goods) or for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture or in the course of repairing or treating other goods.
If the Customer is a “Consumer” and any of the Goods supplied by the Supplier are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the Customer agrees that the Supplier’s liability for a failure to comply with a consumer guarantee under the Australian Consumer Law in relation to those Goods (other than a guarantee under sections 51 (title), 52 (undisturbed possession) and 53 (undisclosed securities)) of the Australian Consumer Law, is limited to, at the option of the Supplier, one or more of the following:
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 cost of having the Goods repaired.
If the Customer is a “consumer” and any of the Services supplied by the Supplier are not services of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for a failure to comply with a consumer guarantee under the Australian Consumer Law in relation to those Services is limited to, at the option of the Supplier:
e) the supply of the Services again; or
f) the payment of the cost of having the Services supplied again.
23) Confidential Information
a) Neither party shall use Confidential Information for any purpose not contemplated by these Terms.
b) Each party shall restrict access to any information supplied in relation to these Terms to personnel within its organisation or other third parties such as consultants, who need such access in order to perform their duties and receive it under obligations and confidentiality.
c) The Receiving Party agrees that any of the Confidential Information disclosed to it shall be used for the sole and exclusive purpose of fulfilling its obligations in relation to these Terms.
d) The Receiving Party shall not, without the written consent of the Disclosing Party, disclose any such Confidential Information to any other person or entity other than those of its employees or agents who must have access to such Confidential Information for the sole and exclusive purpose of fulfilling its obligations under these Terms. All such employees shall be bound to maintain such Confidential Information in confidence and the parties will take such reasonable steps to require its employees to preserve such trust and confidence.
e) The Receiving Party shall be responsible for any breach of these obligations by its employees.
24) Dispute Resolution
a) If any dispute or difference shall arise between the parties as to:
i) Either party being unable to pay its debts as they fall due, becoming insolvent, appointing a receiver or entering into a formal arrangement with creditors; or
ii) Either party committing any breach of these Terms where the breach is not capable of being remedied, the party claiming there is a dispute or difference (“Issue“) must provide written notice to the other party.
b) Within ten (10) days of receipt of the notice of the Issue, the parties’ nominated representatives must meet in good faith to attempt to resolve the Issue.
c) If the Issue cannot be resolved at the meeting between the parties’ nominated representatives, either party may require that the Issue is referred to mediation. The mediator shall be agreed between the parties, or otherwise appointed by the President of the New South Wales Law Society.
d) Each party will bear their own respective legal costs (as between solicitor and Customer) of the enforcement or attempted enforcement of respective rights, remedies and powers under these Terms, including referral of any Issue under these Terms to mediation.
25) Direct Debit Authority
Supplier will require the completion of a direct debit authority as a condition of supply.
26) Electronic Communication
By visiting Supplier’s website or sending e-mails to Supplier, the Customer is communicating with Supplier electronically.
The Customer:
a) consents to receive communications from Supplier electronically;
b) agrees that all agreements, notices, disclosures and other communications that are provided to the Customer electronically satisfy any legal requirement that such communications be in writing.
27) Unauthorised Use
Except as expressly provided in these Terms, the Customer is responsible for, and Supplier is not liable for, any unauthorised use whatsoever of credit facility.
28) Financial Information
At Supplier’s request from time to time, the Customer must provide to Supplier information in the form, and for the period required, by Supplier in relation to the Customer’s financial position including a balance sheet, profit and loss statement and cash flow statement and, where the Customer is a corporation, information in relation to the Customer’s officers from whom Supplier and/or Fraser has or seeks guarantees.
29) Termination
a) Either party will have the right to terminate these Terms immediately by notice in writing in the event of:
i) Either party being unable to pay its debts as they fall due, become insolvent, appoints a receiver or enters into a formal arrangement with creditors;
ii) Either party committing any breach of these Terms where the breach is not capable of being remedied;
iii) It being of convenience to the party providing the notice;
b) Termination of this agreement shall not relieve the Supplier or the Customer of its obligations to pay all money owed by it to the Customer or the Supplier respectively, on any account whatsoever, which money shall be payable immediately notwithstanding that the date for payment of the money may not have arrived.
Termination of these Terms shall be without prejudice to any rights and remedies of the Customer or the Supplier that accrued prior to the date of termination and shall not relieve the Supplier or the Customer respectively from liability arising from any antecedent breach of these Terms.
Upon termination, all amounts owing will become due and payable immediately.
30) Applicable Laws
Part A of these Conditions is governed by and is to be interpreted according to the laws in force in the state where the Goods or Services are supplied and the parties submit to the non-exclusive jurisdiction of the courts operating in that state.
Where the Goods or Services are supplied to multiple states, Part A of these Conditions is governed by and is to be interpreted according to the laws in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the courts operating in New South Wales.
31) Force Majeure
The Supplier shall not be liable in any way for any delay in the supply / performance of Goods and/or Services where such delay occurs by reason of any cause whatsoever beyond the reasonable control of the Supplier, including without limiting the generality thereof, restrictions of Government or other statutory authorities, wars, fires, epidemics, failure or fluctuation in any electrical power supply, storm, flood, earthquake, accident, labour dispute, plant breakdown, materials or labour shortage, the change or introduction of any law or regulation or an act or omission of any supplier or other third party or any failure of any equipment owned or operated by them.
32) General
a) (Severance) Any provision of these Terms which is unenforceable or partly unenforceable is, where possible, to be read down so as to be enforceable, and if it can not be read down, severed to the extent necessary to make these Terms enforceable, unless this would materially change the intended effect of these Terms.
b) (Waiver) A right may only be waived in writing, signed by the party giving the waiver, and no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right.
c) (No implied terms) The Customer may have the benefit of certain statutory guarantees relating to the Goods and/or Services services pursuant to the Competition and Consumer Act 2010 (Cth). Otherwise, to the maximum extent permitted by law, all terms, conditions or warranties that would be implied into these Terms or in connection with the supply of the Goods and/or Services by law, statute, custom or international convention (including those relating to quality or fitness for purpose) are excluded.
d) (Insurance) The Customer must take out and maintain those policies of insurance that would be held by a reasonably prudent customer in the position of the Customer.
e) (No Adverse Interpretation) These Terms are not to be interpreted against the interests of a party merely because that party proposed this document or some provision in it or because that party relies on a provision of these Terms to protect itself.
f) (GST) If the Supplier has any liability to pay GST on the supply of any Goods or Services to the Customer, the Customer must pay to the Supplier an amount equivalent to the GST liability of the Supplier at the same time as the consideration is paid for the Goods or Services (unless the consideration for that supply is expressed specifically to be GST inclusive).
g) (Warranty and Indemnity) The Customer warrants it has all necessary power and authority to enter into these Terms, that it will not breach any agreement with a third party by ordering any goods from the Supplier and that any person ordering goods, signing an invoice, order form or quotation on behalf of the Customer from time to time is authorised to do so by the Customer. The Customer agrees to indemnity Supplier for all costs, losses, damages and expenses which Supplier may suffer or incur for any reason in consequence of or relating to the supply of goods to the Customer, including by reason of any person purporting to place orders with Supplier on behalf of the Customer without authority to do so.
h) (Waiver) No waiver or indulgence by the Supplier will be a waiver of Supplier’s rights with respect to any breach or recurring breach.
i) (Time of the Essence) Time will be of the essence for the performance of the Customer’s obligations hereunder.
j) (Set Off by Supplier) The Customer authorises Supplier to set-off against any money due by Supplier or its Related Bodies Corporate to the Customer any monies due by the Customer to Supplier or its Related Bodies Corporate.
k) (Notices) Any notice given under these Terms shall be given in writing and delivered, mailed or faxed or transmitted by electronic mail to the respective parties at their designated address. Supplier’s designated address is 153-165 Parramatta Rd Concord 2137.
The Customer’s designated address is deemed to be the address stated in the Credit Application Form or the Customer’s registered office.
Any party may change its designated address by prior notice in writing to the other.
33) Definitions
In these Terms capitalised words used have the meanings set forth in the Credit Account Terms and Conditions and the following words have the following meaning:
“Australian Consumer Law” means Schedules 1 and 2 of the Competition and Consumer Act 2010 (Cth) and any other relevant provisions contained in that Act.
“Confidential Information” means any information which relates to the business, assets or affairs of either party which is made available by that party (“Disclosing Party”) to the other party (“Receiving Party”) or is otherwise obtained by the Receiving Party and which is by its nature confidential or the Receiving Party knows, or ought to know, is confidential but does not include information that is:
a) in or enters the public domain through no fault of the Receiving Party or any of its officers, employees or agents;
b) received by Receiving Party from a third-party who had a legal right to provide it; or
c) or was developed by Receiving Party independently of the other Party and any of its officers, employees or agents;
“Consumer” has the meaning in the Australian Consumer Law.
“GST” means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
“Non-Standard Orders” means Orders which require delivery which is not standard.
“Price” means the price for each Good sold to a Customer under these Terms;
“Supplier” means the relevant Fraser Group Supplier undertaking the supply to the Customer.
“Terms” means these Terms of quotation and any additional matters prescribed on the face of the Order.
“includes” or “including” means includes or including without limitation