“Supplier” means Allthread Industries Pty Ltd ABN 58 003 174 383.
“Customer” means the applicant named in the application for credit to which these Terms and Conditions are attached. Where more than one person is named as Customer, the word “Customer” shall be read as “Customers” and this agreement shall bind the Customers and their respective successors and assigns jointly and severally.
“Guarantor” or “Guarantors” means those persons named as Guarantors in the application for credit to which these Terms and Conditions are attached.
A “duly authorised officer” shall mean any of the general manager, sales manager, accountant, and any other manager designated by the Supplier as a duly authorised officer, from time to time.
The headings used do not form part of these Terms and Conditions, but are for aid in interpretation only.
The Customer agrees to comply with and abide by these Terms and Conditions.
Any order placed by the Customer, and all goods supplied to the Customer are subject to these Terms and Conditions which shall prevail over any terms or conditions in the Customer’s order or acceptance, unless expressly agreed otherwise by the Supplier in writing.
These Terms and Conditions are in place of and exclude all other representations, warranties, conditions, and obligations (express or implied) except only those (if any) imposed by statute, which Supplier cannot lawfully exclude.
The Supplier may in its sole discretion accept or reject any order placed by the Customer, in whole or in part. If an order is accepted by the Supplier, or if the Supplier delivers any goods ordered by the Customer, it does so subject to these Terms and Conditions.
If any drawings are required from the Customer, then any delivery period commences only from the time of receipt by the Supplier of the drawings.
This contract is governed by and is construed in accordance with the laws of New South Wales, Australia. The parties hereby submit to the exclusive jurisdiction of the courts of New South Wales.
PAYMENT / ACCOUNT TERMS
Subject to clause 3.2, all goods supplied to the Customer shall be paid for in full by the Customer no later than 30 days from end of month issued by the Supplier, (“Due Date”). All payments must be made in full, without deduction, retention, withholding or set off.
The Supplier reserves the right in its discretion, to require payment in cash in full prior to delivery of any goods.
The Customer must pay all legal costs, stamp duties, other expenses, costs or disbursements (including but not limited to any dishonoured cheques fees, debt collection agency fees and solicitor’s fees), incurred by the Supplier in recovering, collecting or enforcing payment, or compliance with any other obligations by the Customer.
If the Supplier is not paid for any goods on the Due Date then, without prejudice to any other right or remedy, all outstanding money shall bear interest on daily balances until paid at a rate of interest 5% per annum greater than the interest rate charged by National Australia Bank at the relevant time on overdraft accounts for sums up to $500,000 (Australian), and such money together with all interest shall be recoverable forthwith from the Customer.
The Supplier shall be entitled to add to any invoice, GST, the cost of any duty and sales, excise, value added, consumption or any other tax or imposts applicable to the transaction with the Customer.
In the case of a trustee Company, the Customer acknowledges and agrees that the Trustee shall be liable to the Supplier and that in addition, the assets of the Trust shall be available to meet payment of the Customer’s account.
The Supplier shall deliver to the delivery place nominated by the Customer (“Place of Delivery”). The Customer shall pay to the Supplier, its delivery charges in accordance with the Supplier’s current rates.
The Customer authorises the Supplier to deliver goods to the Place of Delivery and to leave the goods at the Place of Delivery whether or not any person is present to accept delivery. The Supplier shall not be liable on any basis whatever for any loss or damage to the goods occurring after delivery to the Place of Delivery.
The Supplier shall not be obliged to obtain a signed receipt or other acknowledgement at the Place of Delivery. However, if a signed receipt or other acknowledgement of delivery is obtained from a person at the Place of Delivery who appears to be authorised by the Customer to sign or otherwise take delivery, then such signed receipt or other acknowledgement shall be conclusive evidence of delivery, the quantity of goods delivered, the lack of defects in such goods, and otherwise compliance by the Supplier with the order.
Any time quoted for delivery is an estimate only and the Supplier shall not be liable for the failure to deliver or for delay in delivery of goods occasioned by any strike, lockout, shortage of stock, shortage of labor, lack of skilled labor, delays in transit, fire, flood, hostility, civil commotion or other cause whatsoever whether or not beyond the control of the Supplier.
Goods which have been delivered to the Customer may not be returned for credit unless the Supplier expressly agrees in writing, and then only on such terms as the Supplier agrees.
Supplier’s sole liability in respect of any faulty or defective goods supplied is limited, at the Supplier’s election to
the replacement of the goods or the supply of equivalent goods; or
the repair of the goods; or
the payment of the cost of replacing the goods, or of acquiring equivalent goods or of repairing the goods.
The Customer must give written notice to the Supplier of any claim relating to any fault or defect in the goods, together with details of any alleged fault or defect. The Supplier shall not be liable in respect of any such fault or defect which is not notified in writing to the Supplier within 14 days of the date of delivery of the goods, or within 7 days after the Customer becomes aware of the facts giving rise to the fault or defect, whichever occurs first.
To the maximum extent that the Supplier may lawfully exclude liability for damages, the Supplier hereby excludes liability for damages of any nature or kind whether arising from contract, misrepresentation, breach of warranty or any law or regulation and, without limitation, the Supplier shall not be liable for any consequential damages, loss of profit or the like.
PROPERTY AND RISK
Unless otherwise agreed by the Supplier in writing the following shall apply
Legal and equitable title in the goods shall not pass to the Customer until the purchase price for the goods has been paid in full to the Supplier by the Customer but risk in the goods shall pass to the Customer immediately upon delivery.
Until such time as the title passes in accordance with clause 6.1 the Customer shall hold the goods as bailee for the Supplier on the terms set out below.
The Customer shall not dispose of or part with possession of the goods without the prior written consent of the Supplier.
The Customer shall store the goods separately from other goods in the Customer’s possession in a manner which clearly identifies those goods as the property of the Supplier.
Pending transfer of title, the Customer may use the goods as agent of the Supplier and as authorised by the Supplier to manufacture new products. The products resulting from such manufacture will be the property of the Supplier.
Until such time as title passes to the Customer, the Customer is hereby authorised to sell, or agree to sell, the goods or any manufactured products as agent of the Supplier PROVIDED THAT
the Customer must keep separate records in relation to the proceeds of the sale of any goods which have not been paid for, bank the proceeds of any such sale into a separate account and immediately remit such funds to the credit of Supplier;
if any goods are used in a manufacturing process or mixed with other materials, the Customer shall record the value of goods so consumed in relation to each unit of finished product and upon sale of any unit of finished product immediately remit that amount from the proceeds of sale to the Supplier; and
this authorisation shall lapse immediately upon any of the following events occurring
the Customer, being a natural person, commits an act of bankruptcy or is declared insolvent;
where the Customer is a corporation, proceedings are commenced to wind up the Customer or the Customer is placed under official management or a receiver is appointed over the Customer’s undertaking or property or any part thereof or the Customer is placed under any other form of insolvent administration;
the Customer enters into any arrangement or assignment for the benefit of its creditors;
the Customer disposes of or parts with possession of the goods otherwise than as expressly authorised by this agreement; or
the Customer, in the opinion of the Supplier, is in breach of any of the terms of this agreement.
If the Customer does not pay for any goods on the due date, the Supplier is hereby irrevocably authorised by the Customer to enter the Customer’s premises (or any premises under the control of the Customer or as agent of the Customer if the goods are stored at such premises) and use reasonable force to take possession of the goods without liability for the tort or trespass, negligence or payment of any compensation to the Customer whatsoever.
The Supplier is entitled to sub-contract the production, manufacture or supply of the whole or any part of the goods, or any of the materials or services supplied.
Notice to be given by the Customer to the Supplier shall be delivered personally to the Accountant of the Supplier. Notice to be given to the Customer by the Supplier may be delivered personally, or sent to the Customer’s last known address and, unless the contrary is proved, shall be taken as delivered on the second business day following posting. Invoices and statements are deemed received by the Customer on the second business day after posting by ordinary prepaid post.
MISUSE OF ACCOUNT
The Customer will ensure no unauthorised persons use the account. If the Customer’s business is sold the Customer will immediately close the account to prevent misuse and will remain liable for the account until written notification of change of ownership of the business has been received by the Supplier.
ACKNOWLEDGEMENT BY CUSTOMER
The Customer acknowledges that the information provided in the Customer’s application for credit is the basis for the evaluation by the Supplier of the financial standing and credit worthiness of the Customer (and each of the guarantors) and does hereby certify that the information provided in that application is true and correct.
The Customer agrees to the Supplier obtaining a credit report containing personal credit information about the Customer for the purpose of
assessing the Customer’s application for credit; and/or
the collection of payments in respect of credit provided by the Supplier.
The Supplier may give to and seek from any credit providers, bankers or referees named in the Customer’s credit application, and any credit providers that may be named in any credit report, information about the Customer’s credit. The Customer understands that this information may include information about the Customer’s credit worthiness, credit standing, credit history or credit capacity.
The Customer agrees that the information may be used for purposes which include
to assess an application by the Customer for credit;
to notify other credit providers of a default by the Customer;
to exchange information with other credit providers as to the status of this account where the Customer is in default with other credit providers;
to assess the Customer’s credit worthiness.
In consideration of the Supplier agreeing to supply, or continue to supply, goods or services on credit to the Customer, the persons whose signatures as Guarantors appear below UNCONDITIONALLY and IRREVOCABLY JOINTLY AND SEVERALLY GUARANTEE to the Supplier the due and punctual payment of all sums of money, interest and charges which are or may become payable by the Customer to the Supplier, and the Guarantors JOINTLY AND SEVERALLY AGREE TO INDEMNIFY and keep the Supplier indemnified form and against all losses, damages, costs and expenses which have been, or may be suffered or incurred by the Supplier by reason of any breach or failure by the Customer.
The GUARANTORS HEREBY AGREES with the Supplier that
This guarantee and indemnity shall be a continuing Guarantee and Indemnity and shall not be prejudiced or affected by
Any other guarantee or security, which the Supplier may now or hereafter hold in respect of any moneys hereby guaranteed, or any judgment obtained by the Supplier, or any release, discharge, surrender or modification of or dealing with any such guarantee, security or judgment;
Any arrangement with or release of the Customer or any other guarantor or person by the Supplier or by operation of law, whether the consent of the Guarantor shall have been obtained, or notice thereof given to the Guarantor or not, or any omission or delay on the part of the Supplier;
The fact that any moneys payable by the Customer may cease to be recoverable from the Customer or from any other Guarantor or person;
Any change in the membership of or termination of any partnership or firm of which the Customer or Guarantor is a member or the death, liquidation or bankruptcy of the Customer, or the assent of the Supplier to any composition, arrangement or scheme in respect of the Customer or the acceptance by the Supplier of any dividend or sum of money there under;
The failure of any other person named as Guarantor or other party to execute this instrument;
Any variation of the terms upon which any goods and/or services are supplied to the Customer;
Any claim the Customer may have against the Supplier;
Any act or omission by the Supplier which may result in prejudice to the Guarantor;
Any payment to the Supplier by the Customer which is later avoided by the application of any statutory provision;
The death of the Guarantor.
Until the Supplier shall have received one hundred cents in the dollar in respect of moneys hereby guaranteed, the guarantor AGREES
In the event of any bankruptcy or other administration of the Customer’s estate or any winding up, official management or scheme of arrangement of the Customer, the Guarantor will not without the prior consent of the Supplier, lodge any proof of debt or similar claim in respect of any debt or liability to the Guarantor on any account whatsoever, nor enforce any security held by the Guarantor in respect of the Customer, and shall hold any such debt, liability or security and any rights or benefits in respect thereof in trust for the Supplier;
If requested by the Supplier, to lodge a proof of debt or similar claim in any such administration and enforce any such security as aforesaid, and to execute all such documents and do all such things as the Supplier may require to enable the Supplier to have and receive the benefit of or arising from any such proof, claim or security;
The Guarantor’s liability hereunder shall be that of principal debtor.
A statement in writing signed by the manager or credit manager of the Supplier of the moneys due from or owed by the Customer or covered by this Guarantee shall be prima facie evidence of the amount so due or owing or covered by this Guarantee.
The Guarantor irrevocably appoints the Supplier as their attorney with authority to do on behalf of the Guarantor anything the Guarantor may lawfully authorise an attorney to do, including without limitation the following
To make, sign, execute, seal and deliver any documents;
To execute any instrument or do any act which may result in a benefit being conferred on the Supplier;
To appoint substitute attorneys;
To exercise any rights or powers as trustee held by the Guarantor; and
To take possession of, use, sell or otherwise dispose of any asset of the Guarantor.
The Guarantor further agrees that
The Guarantor has signed this Guarantee and Indemnity voluntarily;
The Guarantor has understood the nature and effect of this Guarantee and Indemnity, in particular that the Guarantor has agreed to guarantee all amounts presently owed by the Customer to the Supplier and all amounts that the Customer may in the future owe to the Supplier, and has agreed to indemnify the Supplier against all losses, damages, costs and expenses which have or may be suffered or incurred by reason of any breach or failure by the customer.
In this Guarantee and indemnity the following rules of interpretations apply unless the context or otherwise requires
Words denoting the singular number include the plural and vice versa;
Words denoting the natural persons include bodies corporate and unincorporated and their permitted assigns;
References to any party include the party’s successors and permitted assigns.
Where any provision of the Guarantee and Indemnity is rendered void, unenforceable or otherwise ineffective by operation of law, this shall not affect the enforceability or effectiveness of the remaining provisions.
The Supplier may give to and seek form a credit reporting agency or other credit provider, a credit report containing personal and/or commercial credit information about each Guarantor, including information about the credit worthiness, credit standing, credit history or credit capacity of the Guarantor, and use this information for the purpose of assessing this application, and for assessing whether to accept the Guarantor as a guarantor in respect of the credit for which application is made by the Customer, notifying other credit providers of any default by the Guarantor.
We acknowledge the Aboriginal and Torres Strait Islander people as the First Australians and Traditional Custodians of the land on which we live, learn and work.