“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) as amended.
“Agreement” means these terms and conditions of sales & credit.
“Business Day” means any day that is not a Saturday or Sunday or public holiday in the state of Victoria.
“Customer” means each and every party, jointly and severally, listed on the credit application or invoice attached to this Agreement or, if no party is named, the party to whom TTI provides this Agreement.
“Delivery” means delivery of Products or Services at or to a Site.
“GST” means the Products and Services Tax as defined in A New Tax System (Goods and Services Act) 1999 (Cth) as amended.
“Order” means a request by the Customer to TTI for provision of Products or Services.
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended.
“Price List” means the list prices for Products and Services kept and updated from time to time by TTI.
“Products” means any products, which TTI sells or provides to the Customer from time to time.
“Services” means any services which TTI sells or provides to the Customer from time to time.
“Site” means any location to which the Customer requests that Product be delivered or at which Services are to be performed.
“TTI” means Trafford Group Pty Ltd (ACN 165 797 277) its successors, assigns, employees, servants and agents.
The Customer may enter into this Agreement with TTI by either:
a) signing a copy of this Agreement; or
b) signing any other form of acknowledgment of this Agreement; or
c) signing a credit application after having received a copy of this Agreement at some prior time, whether such copy was contained in an invoice in relation to any previous supply of Products or Services or otherwise; or
d) making an Order after having received a copy of this Agreement at some prior time, whether such copy was contained in an invoice in relation to any previous supply of Products or Services or otherwise.
a) Except as expressly provided in this Agreement, this Agreement constitute a complete statement of the agreement between TTI and the Customer with respect to supply of any Products or Services, despite any provisions to a contrary effect in any of the Customer’s order forms or other documents.
b) Upon acceptance, this Agreement shall supersede all prior arrangements written or oral between the Customer and TTI in relation to the ongoing provision of Products and Services to the Customer.
c) TTI may vary or amend these terms by written notice to the Customer at any time. Any variations so made will only apply to Orders placed by the Customer after the time that the variation has been bought to the Customer’s attention.
d) No variations or modifications of any term of the Agreement shall be binding unless agreed to in writing by TTI.
e) This Agreement shall not be modified or varied by the acknowledgement, receipt or acceptance by TTI of a purchase order form or other document containing terms and conditions put forward by the Customer.
f) Unless otherwise agreed in writing, any Products or Services supplied by the TTI are part of an ongoing supply under this Agreement.
This Agreement shall apply to all dealings between the Customer and TTI until it is replaced by an alternate written agreement signed by the Customer and TTI.
a) The Customer may Order from TTI from time to time such quantities of Products and Services it requires, with Orders to be in such format (whether written or otherwise) as TTI may require.
b) Whilst TTI will use its best endeavours to ensure that it is able to provide Products and Services to the Customer when required, it does not warrant or guarantee that it will be able to do so and will not be responsible for any losses alleged to have been suffered by the Customer as a result of failure to supply or delay in supplying Products or Services, regardless of the reason for the failure to supply.
c) TTI retains the absolute discretion at all times to refuse to accept any Order made by the Customer for Products or Services, including but not limited to circumstances where Products are unavailable for any reason, the Customer has failed to make payment for previous Orders or payment has been made outside payment terms or where the Customer is otherwise in breach of this Agreement.
d) Any errors made by TTI in computations, typing or otherwise of any part of the quotation, offer, invoice, delivery docket, or any other form of communication with the Customer shall be subject to correction by TTI and the Customer agrees to be bound by any such correction.
e) Products are not sold on a consignment basis unless TTI specifically agrees in writing to do so.
a) Unless agreed in writing by TTI, the Customer shall be responsible for collecting any Products from the TTI outlet nominated by TTI. Any date provided by TTI as an indication of likely availability of any Products shall be an estimate only and shall not in any circumstances be incorporated in to any agreement between the parties.
b) In the event that TTI agrees to provide Delivery of the Products, TTI may select any carrier in its absolute discretion as it sees fit and engage such carrier on such terms as TTI in its absolute discretions sees fit.
c) Any period or date for delivery of Product or Services stated by or on behalf of TTI shall be regarded by the Customer as an estimate only and not a contractual commitment or representation which may be relied upon. TTI shall not be liable therefore for any delays or inability to deliver any Products or Services.
d) TTI shall be entitled to deliver Products in instalments and the Customer shall not be entitled to terminate or cancel the Order or to any claim, loss or damage howsoever arising from any failure by TTI to deliver any instalments on or before the estimated date of Delivery.
e) The Customer acknowledges that TTI may at its discretion engage and or utilise agents or subcontractors in the provision or Delivery of Products and Services to the Customer.
a) The Customer shall provide suitable and practical means of access to the Site and ensure that the Site is suitable to allow the efficient and safe delivery of Products and Services. In the event that the Site is unsafe for Delivery, TTI reserves the right to refuse to deliver the Products and the Customer shall be charged for all expenses (if any) incurred as a result of an unsafe Site including but not limited to the cost of TTI delivering to another Site.
b) The Customer shall advise TTI in advance of Delivery if there are any potential hazards, risks or difficulties which may be encountered either at, or close to, the Site including but not limited to narrow roads, low hanging electrical wires, traffic islands and a lack of parking. TTI reserves the right to refuse to deliver to the Customer at a Site designated by the Customer in the event that it is unsuitable and it will be the Customer’s responsibility to provide an alternative suitable location for Delivery and the Customer shall be liable to TTI for all expenses or losses (if any) incurred as a result of such a change.
c) The Customer must provide and operate any machinery required to offload any Products at the Site in a safe and timely manner and in the event Customer authorises or requires TTI to operate any machinery at the Site, TTI does not take or accept any responsibility for the machinery and all risk and liability in and relating to the machinery remains with the Customer at all times.
d) For the sake of certainty and without limiting any other clause in this Agreement, the Customer:
(i) shall not be entitled to cancel its Order in the event that the Delivery is not made pursuant to this clause 7; and
(ii) acknowledges that any amount charged by TTI for Delivery to the Site originally nominated by the Customer will still be charged where TTI is unable to access the Site and that TTI shall be entitled to charge additional reasonable amounts where the Site is changed due to TTI refusing to deliver to the Site nominated at the time of the Order in accordance with this Agreement or if through no fault of TTI, time delays in delivering the Products occur at the Site.
e) Delivery shall be kerbside to the address of the Site unless otherwise agreed between the parties. In the event that Delivery is within the Site, (that is, beyond the kerbside), the Customer accepts all responsibility and liability for any damage, loss, injury or claim of any sort which results from TTI being instructed to deliver the Products within the Site including where such damage, loss, injury or claim is made/suffered by TTI. TTI shall be entitled to charge additional reasonable amounts in respect to delays caused in accessing the site including but not limited to by reason of induction requirements.
f) The Customer warrants that it is the owner of the Site, or, if it is not, that it is authorised by the owner to allow for Services being performed at the Site and/or for Products to be installed or delivered to the Site.
g) The Customer shall ensure that either the Customer or the Customer’s agent are present at the time of the Delivery to receive the Products or Services. In the event that the Customer or the Customer’s agent are not present but have consented to TTI delivering the Products or Services in their absence, the Customer acknowledges that without limiting the application of any other terms of this Agreement, clause 15a) of this Agreement applies to such deliveries.
h) TTI shall not be obliged to obtain a signed receipt or other acknowledgment of Delivery. However, if a signed receipt or other acknowledgment of Delivery is obtained by a person at the place of delivery who appears to be authorised by the Customer to sign or otherwise take Delivery, then, to the extent permitted by law, such signed receipt or other acknowledgment shall be conclusive evidence of Delivery, the quantity of Products delivered and otherwise compliance with the Order.
i) The Customer shall ensure that any other parties performing works at the Site do not interfere with or otherwise hinder TTI‘s provision of Products or Services. In this regard the Customer shall provide to TTI any information reasonably required by it in respect to the activities or proposed activities of any other party performing works at the Site.
j) At no time does TTI take or accept any responsibility for the Site and all risk and liability in and relating to the Site remains with the Customer at all times.
The Customer acknowledges and agrees that:
a) Products will not necessarily be suitable for a given location, property type, use or purpose;
b) It will not purchase Products from TTI unless it has, prior to placing any Order, assessed whether it needs to obtain specific advice from a suitably qualified professional as to the desirability of using the relevant Product –
(i) in the location;
(ii) at the time;
(iii) under the conditions;
(iv) for the purpose; and
(v) in the manner,
that it is proposed the Product will be used.
c) In utilising any Product purchased from Trafford, the Customer will follow accepted industry best practices and seek and follow suitable professional advice at all times.
a) The Customer agrees that in return for TTI supplying Products or Services, the Customer shall be charged for the Products and Services as set out in TTI‘s Price List as it applies at the time of the Customer placing an Order for Products and or Services or at such other price as agreed between the parties in writing prior to the supply of the Products or Services. If a Product or Service does not appear on the Price List, or if the Price List does not or ceases to exist, then TTI shall be entitled to charge a reasonable amount for those Products or Services.
b) The Customer acknowledges that the Products and Services and the prices in the Price List may be modified by TTI from time to time without notice throughout the currency of this Agreement and it shall be the responsibility of the Customer to check with TTI as to the availability and price of any particular Product immediately prior to placing any Order.
c) Unless otherwise agreed in writing payment will be due:
(i) where TTI has approved credit for the Customer and the cost of any Products and Services ordered by the Customer, plus the cost of any Products or Services previously ordered by the Customer for which payment is outstanding, does not exceed the credit limit approved for the Customer, 30 days from the end of the month of any tax invoice issued by TTI to the Customer; or otherwise
(ii) upon TTI accepting an order for the Products or Services.
d) Unless otherwise agreed in writing, in addition to the price of any Products or Services, the Customer shall pay any costs in relation to the Delivery of any Products or Services to the Site.
e) TTI may, at its sole discretion.
(i) Provide credit to the Customer for Products or Services up to a nominated amount;
(ii) Require payment from the Customer for the Products or Services at the time of pick up / Delivery; or
(iii) Require payment from the Customer for the Products or Services prior to the Products or Services being Ordered by TTI.
f) TTI shall be free at any time, at its sole discretion, to revoke payment terms in regard to any future Orders and require payment in advance of supply of further Product or Services.
g) Payment by any form other than cash is not deemed to have been made unless and until the proceeds have been cleared, honoured or recognised into TTI‘s account.
h) TTI may at its sole discretion receive payment by way of credit card.
i) All prices are in Australian Dollars (AUD) and unless otherwise stated quotes for Products, Services or Delivery are exclusive of GST and any other applicable taxes or duties. In addition to the price for the Products and Services the Customer shall also pay any applicable GST, taxes or duties.
j) Any quotation provided by TTI to the Customer shall, unless otherwise stated in the quotation, be valid only for 7 days from the time it was made and may be withdrawn at any time by TTI within that period and is only an invitation to the Customer to place an Order.
k) Any payments received by TTI, may be applied by TTI to any components of the amounts owed to TTI by the Customer in whatever order TTI elects in it absolute discretion, including but not limited to, allocating sums received in full payment of any interest owed prior to allocating such sums to any other components.
l) In respect of payments required to be made by the Customer under this Agreement time shall be of the essence.
m) The Customer consents to TTI obtaining from a credit reporting agency, a report containing the Customer’s personal credit information in relation to the Customer’s credit worthiness and credit history
n) Where more than one Customer has entered into this Agreement, the Customers shall be jointly and severally liable for the Customers’ obligations under this Agreement.
a) If any payment in respect of the sale of Products or Services is not made in full within the agreed period:
(i) any amounts owing by the Customer to TTI pursuant to this Agreement will become immediately due and payable and TTI will be entitled to demand and receive immediate payment of any such amounts; and
(ii) TTI is entitled to recover possession of all Products to which it has retained title under clause 12.
b) Interest shall be payable on any amounts outstanding outside payment terms by the Customer to TTI from the date of the invoice at the rate of 8% over and above the cash rate set from time to time by the Reserve Bank of Australia.
c) TTI shall be free to suspend or cancel any Order in circumstances where the Customer has failed to make any payment within the payment terms.
d) The Customer hereby indemnifies TTI in respect of losses, expenses and costs incurred by TTI (including but not limited to legal costs on a solicitor/client basis) as a result of any breach of this Agreement by the Customer, including any breach of terms of payment for Products or Services. Such costs include but are not limited to the costs of any demands made of the Customer to remedy any breach, and any legal proceedings to recover unpaid money.
a) The Customer shall have no right of set-off in any suit, claim or proceeding brought by TTI against the Customer for default in payment.
b) The Customer acknowledges that TTI may produce this clause in bar of any proceeding for set-off.
Until TTI receives full payment (in the form of clear funds) for any Products supplied by it to the Customer together with any other amounts owing by the Customer to TTI–
a) title and property in all of the Products yet to be paid for remains vested in TTI and does not pass to the Customer;
b) the Customer must hold the Products as bailee for TTI;
c) where practicable the Products shall be kept separate and identifiable;
d) TTI may give notice in writing to the Customer to return the Products or any of them to TTI. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Products shall cease;
e) TTI shall have the right of stopping the Products in transit whether or not delivery has been made
f) the Customer must hold the proceeds of any sale or disposal of the Products on trust for TTI and must not deal with the money of TTI in any way which may be adverse to TTI;
g) the Customer shall not charge the Products in any way nor grant nor otherwise give any interest in the Products while they remain the property of TTI;
h) TTI can issue proceedings to recover the rice of the Products sold notwithstanding that ownership of the Products may not have passed to the Customer;
i) until such time that ownership in the Products passes to the Customer, if the Products are converted into other goods or products the parties agree that TTI will be the owner of such other goods or products; and
j) in addition to its rights under the PPSA TTI may without notice, enter any premises where it suspects that the Products are and remove them, and for this purpose the Customer irrevocably licenses TTI or its agents to enter onto such premises and also indemnifies TTI from and against all costs, claims, demands or actions by any party arising from such action.
a) For the purposes of the PPSA:
(i) terms used in this clause have the corresponding meaning to their use in the PPSA;
(ii) this Agreement constitute a Security Agreement between TTI and the Customer and TTI has a Purchase Money Security Interest in all present and future Products supplied by TTI to the Customer and the proceeds of those Products;
(iii) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer to TTI at any particular point in time; and
(iv) by entering into this Agreement the Customer agrees to grant to TTI a Security Interest in the Products and TTI shall be entitled to register the Security Interest on the relevant Security Register
b) The Customer must do whatever shall be necessary in order to give a valid Security Interest over the Products and their proceeds which is able to be registered by TTI on the Personal Property Securities Register. Without limiting the Customer’s obligations under this clause, the Customer must immediately upon TTI‘s request:
(i) execute all documents and do any other things necessary to give effect to the security interest created under these terms; and
(ii) provide any further information (such information to be complete, accurate and up-to-date in all respects) which TTI may reasonably require to:
A. register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register
B. register any other document required to be registered by the PPSA; or
C. correct a defect in a statements referred to in subclause A or B of this clause; and
(iii) procure from any person considered by TTI to be relevant to its security position such Agreements and waivers as TTI may require at any time.
c) The security interest arising under this clause attaches to the Products when the Products are collected from or dispatched from TTI‘s premises and not at any later time.
d) TTI shall be free to allocate sums received from the Customer in any manner TTI determines, including in any manner required to preserve any Purchase Money Security Interest or any other security interest it has arising by virtue of supply of Products to the Customer.
e) The Customer undertakes to:
(i) indemnify, and upon demand reimburse, TTI for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Products charged thereby;
(ii) not register a financing statement in respect of a security interest without the prior written consent of TTI;
(iii) not register, or permit to be registered, a financing a statement or a financing change statement in relation to the Products in favour of a third party without the prior written consent of TTI; and
(iv) immediately advise TTI of any material change in its business practices which would result in a change in the nature of the proceeds derived from such sales.
f) The Customer, agrees that it will, if called upon at any time by TTI to do so, procure from any one or more of its directors or other interested party (as directed by TTI) a personal guarantee and or indemnity of the Customer’s obligations pursuant to this Agreement in a form acceptable to TTI, with such guarantee to cover both future liabilities and any liabilities of the Customer to TTI which predate the signing of the guarantee.
a) The Customer:
(i) waives its right under section 157 of the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing change statement relating to a Security Interest created under this Agreement; and
(ii) waives its right to receive any other notice or statement under any other provision of the PPSA (including for the avoidance of doubt, any of the provisions specified in paragraph 14b)).
b) To the fullest extent permitted by the PPSA, the parties agree to the contract out of sections 95, 96, 115, 117, 118, 120, 121, 125, the second sentence of section 126(2), sections 129(2), 129(3), 130, 132, 135, 142 and 143, which sections (or parts of sections) shall not apply.
a) The risk in the Products and all insurance responsibility for theft, fire or damage of any other kind shall pass to the Customer immediately upon Delivery of the Products (including but not limited to Delivery to the Customer’s agent or carrier) or upon collection by the Customer from the point of sale (including but not limited to collection by the Customer’s agent or carrier)(whichever is applicable), regardless of whether there is any further work to be completed by TTI in regard to those Products.
b) To the extent that title to any Products remains with TTI pursuant to clause 12 of this Agreement, the Customer must note the interest of TTI on any insurance policy in relation to the Products.
c) TTI makes no warranties or representations, either expressed or implied as to the merchantability, suitability or fitness for a particular purpose or otherwise with respect to the Products or Services other than as implied by law and which may not be excluded, restricted or modified.
d) The Customer acknowledges that the Customer does not rely on the skill or judgment of TTI as to whether the Products supplied are reasonably fit for any purpose for which they are being acquired.
e) All implied guarantees, warranties and conditions are excluded to the maximum extent permitted by law.
f) To the maximum extent permitted by law, TTI is not liable for:
(i) any loss or damage to the Products resulting from any action or omission on the part of TTI, or the employees, contractors or agents of TTI; or
(ii) any special, consequential, direct or indirect loss and damage incurred by the Customer.
g) If TTI is liable for a breach of a guarantee implied by the ACL in respect to the provision of the Products or Services and those Products or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then, to the extent permitted by the ACL, its liability to the Customer will be limited to –
(i) the replacement of the Products or the supply of equivalent Products;
(ii) the repair of the Products;
(iii) the payment of the costs of replacing the Products or acquiring equivalent Products;
(iv) the supplying of the Services again; or
(v) the payment of the cost of having the Services supplied again.
h) The Customer shall examine the Products upon Delivery or collection of Products and inform TTI in writing within 7 days of Delivery or collection if it holds any concerns whatsoever in regard to the quality, specifications or suitability of any Products. In the event of such notification the Customer shall provide TTI with reasonable and prompt access to the Products for the purpose of inspection and testing.
i) Should the Customer fail to give written notice of any concerns in regard to the Products pursuant to and within the time frame referred to in clause 15h) then, to the maximum extent permitted by law, the Customer agrees to and is deemed to have waived any and all entitlement to bring a claim of any kind against TTI in respect of the concern related to the Products and the Products are deemed to have been accepted by the Customer.
j) TTI will not be liable for any loss, damage, costs or claim that arises as a result of the Customer’s failure to use any Product for its appropriate or recommended use or in accordance with any Product handbook or where the Customer is in breach of its obligations under clause 8. The Customer hereby indemnifies TTI in relation to any loss, damage, costs or claim in connection with any such use of any Product.
k) In the event that the Customer provides any design or mould to TTI or orders any custom made Product from TTI, the Customer will remain responsible for the design or any mould provided by the Customer to TTI and TTI will not be liable for any defect, loss, damages, costs or claim in relation to any design or mould. The Customer hereby indemnifies TTI in relation to any claim, loss, costs or damages incurred by TTI in connection to any design or mould provided by the Customer to TTI.
The Customer warrants that:
a) any financial information TTI may require the Customer to give is true and accurate and the Customer will keep TTI informed of any material adverse change.
b) the Customer shall advise TTI forthwith if it ceases trading or if it commences to trade through a different entity or if there is a material change in its ownership or control.
a) No purported cancellation, variation or suspension of an Order for Products or Services (or any part of an Order for Products or Services) shall be binding upon TTI once the Order has been placed with TTI unless accepted in writing by TTI.
b) In the event that the Customer cancels an order or requests that part of an order be suspended for a period of 30 days or more TTI shall be entitled to payment for the proportion of the Products or Services supplied at the time of the cancellation or request for suspension.
a) The Customer agrees and warrants that no patent, copyright, trademark, design or any other right is or will be infringed by reason of TTI accepting and carrying out the order and the Customer agrees to indemnify TTI against all losses, costs, expenses of whatever nature suffered or incurred by TTI in connection with any claim, action or proceeding by a third party.
b) The Customer acknowledges that all technical information, advice, know-how, drawings, designs and samples (‘the information’) submitted to the Customer by TTI are the confidential and proprietary information of TTI.
c) The Customer will keep ‘the information’ secret and confidential and not disclose it or any part thereof without the express authority of TTI. This obligation of confidence does not extend to any information which forms part of the public domain or enters the public domain other than by treason of default on the part of the Customer.
d) The Customer will not reproduce any part of the information in any form other than with the express authority of TTI.
TTI shall not be liable in any manner whatsoever to the extent that it has been prevented from performing any obligation under this Agreement by reason of matters beyond its control, including without limitation-
a) Inability to source Products;
b) Inability to access the Site, TTI‘s premises, part of the Site or part of TTI‘s premises;
c) Lack of access to electricity or other required resources at the Site or TTI‘s premises;
d) Lack of availability for whatever reason of staff or contractors;
e) Acts of God, fire, flood, accidents or machinery breakdown, theft, riot;
f) internal disturbance, lock-outs,
g) pandemic or epidemic;
h) Acts or threats of terrorism or war; or
i) Industrial disputes or strikes.
Any failure or delay by TTI to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right does not preclude either its exercise in the future of the exercise of any other power or right. A waiver is not effective unless it is in writing. The rights of TTI under this agreement are cumulative and not exclusive of any other rights that TTI may have under statute or by virtual common law.
If a clause in this Agreement is unenforceable it must be read down so as to be enforceable or, if it cannot be so read down, it must be severed from this Agreement without affecting the enforceability of the remaining terms of the Agreement.
This Agreement shall be governed by the laws of Victoria, Australia.