The following words have the following meanings in these terms and conditions unless the contrary intention appears:
1.1 “Company” means Trafford Group Pty Ltd (ACN 165 797 277) its successors, assigns, employees, servants and agents.
1.2 “Customer” means the entity to which the Company has supplied goods, either in its own right or as agent under these terms.
1.3 “Event of Termination” means when the Customer is served with any originating process in any proceedings under the Bankruptcy Act 1966 or the winding-up provisions of the Corporations Act 2001 or similar or replacement legislation or has an Administrator, Provisional Liquidator, Receiver or Receiver and Manager appointed to it.
1.4 “Goods” means all goods/products or services agreed to be supplied by the Company to the Customer.
1.5 “PPSA” means the Personal Property Securities Act 2009.
1.7 Terms of Trade means the Tax Invoice and the accompanying Terms of Trade annexed thereto.
2.1 Except as expressly provided in these terms and conditions, these terms and conditions and the Terms of Trade constitute a complete statement of the agreement between the Company and the Customer with respect to supply of the Goods, despite any provisions to a contrary effect in any of the Customer’s order forms or other documents. These terms and conditions supersede all prior arrangements written or oral.
2.2 The Company may change these terms and conditions at any time in writing but not so as to affect orders to the extent that delivery has been made.
2.3 The Customer’s acceptance of these terms and conditions in relation to the supply of the Goods is signified by the making of an order for the Goods where the Customer has previously received a copy of these Terms and Conditions, whether such copy was contained
in an invoice in relation to any previous supply of the Goods or otherwise. This does not exclude acceptance by other means, including signing a credit application or signing any like acknowledgement.
2.4 The supply of the Goods pursuant to these terms and conditions is to be governed and construed in accordance with the law in effect in Victoria and the parties accept the non-exclusive jurisdiction of the Courts of Victoria in relation to any dispute between them.
2.5 Unless otherwise agreed in writing, any Goods supplied by the Company are part of an ongoing supply under these terms and conditions.
Unless otherwise agreed in writing:
3.1 The Company may vary the price without notice.
3.2 Orders will be supplied at the price prevailing at the date of delivery.
3.3 The stated price is exclusive of any costs attributable to any special delivery required by the Customer and those costs are recoverable from the Customer.
3.4 In addition to the price, the Customer shall pay the GST payable thereon and the invoice total is inclusive of GST.
4.1 Payment will be on acceptance of an order unless otherwise agreed in writing.
4.3 Where the cost of goods ordered by the Customer, plus the cost of any goods previously ordered by the Customer for which payment is outstanding, does not exceed the credit limit approved for the Customer, goods will be paid for at the end of the month following the month of invoice.
4.4 If any payment in respect of the sale of Goods is not made in full within the agreed period, the Company is entitled to:
4.4-1 terminate any agreement arising under these terms and conditions and any other contract for sale the Company may have with the Customer;
4.4-2 refuse to make any further delivery of Goods including refusing to deliver Goods ordered by the Customer;
4.4-3 demand and receive immediate payment of any invoice in respect of an agreement arising under these terms and conditions whether payment is then due or not; and
4.4-4 recover possession of all Goods to which it has retained title under clause 8.
4.5 All losses, expenses and costs, including legal fees on an indemnity basis, consequent upon the Customer’s failure to pay on the due date, are recoverable from the Customer by the Company.
4.6 Interest will be charged on overdue accounts at a rate equivalent to the interest rate prescribed by section 2 of the Penalty Interest Rates Act 1983 (VIC) until payment of the debt plus all costs, charges and expenses which may be incurred by the Company are recovered.
4.7 Any errors made by the Company 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 the Company and the Customer agrees to be bound by any such correction.
4.8 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 the Company shall be entitled to payment for the proportion of the goods supplied at the time of the cancellation or request for suspension.
4.9 Payment of any amount by the Customer must be treated as being received in the following order:
4.9-1 First, in relation to obligations that are not secured (“secured” in this clause means secured under the PPSA), in the order in which those obligations were incurred;
4.9-2 Second, in relation to obligations that are secured, but not by purchase money security interests, in the order in which those obligations were incurred; then,
4.9-3 Third, in relation to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.
5.1 The Customer as beneficial owner (and where there is more than one person trading together as the Customer, jointly and severally) hereby charges in favour of the Company all freehold and leasehold interests in land which the Customer now has or may acquire with the payment of all money which may become owing to the Company by the Customer.
5.2 The Customer further acknowledges that the Company is entitled to register a caveat to protect its interest under such charge.
6.1 The Company shall be under no obligation to accept the whole or part of any order, unless otherwise agreed.
7.1 Any quotation given by the Company to the Customer is only an invitation to the Customer to place an Order.
7.2 An Order may be accepted by the Customer verbally, in writing or implied by the Customer’s conduct.
7.3 Any instructions received by the Company from the Customer for the supply of Goods and/or Services and/or the Customer’s acceptance of Goods and/or Services supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
7.4 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
7.5 Upon acceptance of these terms and conditions and the Terms of Trade by the Customer the terms and conditions are binding and can only be amended with the written consent of the Company.
8.1 Unless otherwise agreed, the Customer will bear the costs of delivery of the Goods at premises nominated by the Customer.
8.2 Delivery may be made by the Company or its contractors or agents.
8.3 Delivery shall be deemed to have been made on receipt by the Company’s authorised carrier of a delivery note signed by a representative of the Customer or loading onto the Customer’s nominated carrier.
8.4 The Company reserves the right to alter the agreed date by notice prior to the due date of delivery given to the Customer where it is in the Company’s view impractical to deliver or arrange for delivery of the goods to the Customer on the specified date.
8.5 The Company shall not be liable for any loss or damage, including consequential loss, suffered by the Customer arising from or related to any late delivery or failure to make delivery of an order whether in whole or in part and whether there exists a breach of contract or negligence or breach of any other obligation whatsoever.
8.6 The Company shall not be liable for any loss or damage, including consequential loss, suffered by the Customer arising from or related to any late delivery or failure to make delivery of an order whether in whole or in part and whether there exists a breach of contract or negligence or breach of any other obligation whatsoever.
9.1 The Goods shall be at the Customer’s risk from:
9.1-1 the moment of delivery; or
9.1-2 the moment of receipt by either the Customer or a carrier of the Customer.
9.2 If there is no agreement between the Company and the Customer as to who the carrier is to be, or if it is agreed that the Company will select the carrier, the Company may select any carrier as in its absolute discretion it sees fit and engage such carrier on such terms as the Company in its absolute discretions sees fit.
9.3 Notwithstanding that the risk in the Goods may have passed to the Customer, the Company and the Customer agree that ownership of the Goods shall not pass until:
9.3-1 the Customer has paid the Company all amounts owing for the particular Goods; and
9.3-2 the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.
9.4 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company’s ownership or rights in respect of the Goods shall continue.
9.5 It is further agreed that:
9.5-1 where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and
9.5-2 until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
9.5-3 The Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and
9.5-4 If the Customer fails to return the Goods to the Company then the Company or the Company’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and
9.5-5 the Customer is only a bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Company for the Goods, on trust for the Company; and
9.5-6 the Customer shall not deal with the money of the Company in any way which may be adverse to the Company; and
9.5-7 the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Company; and
9.5-8 the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
9.5-9 until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other Goods the parties agree that the Company will be the owner of the end Goods.
10.1 All implied guarantees, warranties and conditions are excluded to the maximum extent permitted by law.
10.2 To the maximum extent permitted by law, the Company is not liable for:
10.2-1 any loss or damage to the Goods resulting from any action or omission on the part of the Company, or the employees, contractors or agents of the Company; or
10.2-2 any special, consequential, direct or indirect loss and damage incurred by the Customer.
10.3 The Customer shall examine the Goods after delivery and immediately inform the Company of any alleged defect in the Goods. To the maximum extent permitted by law, the Company shall have no liability to the Customer for any defect that visual examination would ordinarily reveal unless the Company receives written notification within two (2) business days from the date of delivery.
10.4 If a defect exists in the Goods and that defect occurred before delivery, then, upon the Customer returning the defective Goods the Company, at its discretion, will either:
10.4-1 replace those Goods; or
10.4-2 provide equivalent goods free of charge; or
10.4-3 pay an amount equal to the cost of replacing the Goods or of acquiring equivalent goods (whichever is the lowest amount).
10.5 To the maximum extent permitted by law, Clause 9(d) constitutes the Customer’s sole remedy in the respect of the supply of defective Goods.
10.6 In the event of a breach of an implied guarantee, condition or warranty which cannot by law be excluded or modified, including any guarantee, condition or warranty implied by the Australian Consumer Law & Fair Trading Act 2012, the Company’s liability shall at the Company’s option be limited to:
10.6-1 the repair or replacement of the Goods or the supply of equivalent Goods; or
10.6-2 the cost of such repair, replacement or supply (whichever is the lowest amount).
10.7 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Australian Consumer Law & Fair Trading Act 2012, (including any substitute to this Act or re-enactment thereof), except to the extent permitted by the Act where applicable.
10.8 Where the Customer buys the Goods as a consumer these terms and conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
11.1 The Company may in addition to any other course of action available to it, elect to terminate any agreement made pursuant to these terms and conditions by notice in writing to the Customer.
11.2 On termination all invoices rendered by the Company are payable immediately.
12.1 the Customer is a party to any agreement with the Company as a principal in its own right.
12.2 any financial information the Company may require the Customer to give is true and accurate and the Customer will keep the Company informed of any material adverse change.
12.3 the Customer will not make any representations or claims about the Goods to persons to whom it sells the Goods which are false and misleading.
12.4 the Customer shall advise the Company 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.
The Customer warrants that:
13.1 In this clause:
13.1-1 financing statement has the meaning given to it by the PPSA;
13.1-2 financing change statement has the meaning given to it by the PPSA;
13.1-3 security agreement means the security agreement under the PPSA created between the Customer and the Company by these terms and conditions; and
13.1-4 security interest has the meaning given to it by the PPSA.
13.2 Upon assenting to these terms and conditions the Customer acknowledges and agrees that these terms and conditions:
13.2-1 constitute a security agreement for the purpose of the PPSA; and
13.2-2 create a security interest in:
13.2-2-1 all Goods previously supplied by the Company to the Customer (if any);
13.2-2-2 all Goods that will be supplied in the future by the Company to the Customer.
13.3 The Customer undertakes to:
13.3-1 promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to:
13.3-1-1 register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
13.3-1-2 register any other document required to be registered by the PPSA; or
13.3-1-3 correct a defect in a statement referred to in clause 12(c)(i)(i) or 12(c)(i)(ii); (Please Check this Reference)
13.3-2 indemnify, and upon demand reimburse, the Company 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 Goods charged thereby;
13.3-3 not register a financing statement in respect of a security interest without the prior written consent of the Company;
13.3-3-1 not register, or permit to be registered, a financing a statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company; and
13.3-4 Immediately advise the Company of any material change in its business practices of selling the Goods which would result in a change in the nature of the proceeds derived from such sales.
13.4 The Company and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
13.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.7 Unless otherwise agreed to in writing by the Company, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
13.8 The Customer shall unconditionally ratify any actions taken by the Company under clauses 12(c) to 12(e).
Should any part of these terms and conditions be held to be void or unlawful, these terms and conditions are to be read and enforced as if the void or unlawful provisions had been deleted.
Every effort will be made to carry out every sale of Goods but the due performance of the sale of Goods is subject to variations or cancellations owing to an Act of God, internal disturbance, strikes, lock-outs, fire, flood, riot, theft, force majeure of any other causes beyond the Company’s control or owing to inability to procure materials or articles except at increased price due to any of the above, but the Customer will remain liable for payment for work done to the date of cancellation.
16.1 The Customer shall have no right of set-off in any suit, claim or proceeding brought by the Company against the Customer for default in payment.
16.2 The Customer acknowledges that the Company can produce this clause in bar of any proceeding for set-off.
The Company is not liable to provide any insurance cover for the provision of the Goods and Services. The Customer must insure the Goods for full replacement value and note the interest of the Company on the policy.
18.1 The Customer acknowledges that the Customer may forfeit any rights if any, he may have against the Company if the Goods are applied for any other use to which the Goods are not intended for and/or not in accordance with any applicable instructions.
18.2 The Customer further acknowledges sole responsibility for any damage or injury to property or person caused by using the Goods in any way, which the Customer may forfeit their rights against the Company.
18.3 The Customer acknowledges that they have not relied on any representation or warranty from the Company with respect to the merchantable quality, description, quality, suitability or fitness of the Goods.
19.1 The Guarantor in consideration of the Contractor having entered into this Contract at the Guarantor’s request.
19.1-1 guarantees that the Customer will perform all its obligations under this Contract,
19.1-2 must pay on demand any amount which the Contractor is entitled to recover from the Customer under this Contract, and
19.1-3 indemnifies the Contractor against all loss resulting from the Contractor’s having entered into this Contract whether from the Customer’s failure to perform its obligations under it or from this Contract being or becoming unenforceable against the Customer.
19.1-4 must pay the Contractor all money which the Contractor refunds to the Customer’s liquidator or trustee in bankruptcy as preferential payments received from the Customer.
19.2 If any of the Customer’s obligations are unenforceable against the Customer, then this clause is to operate as a separate indemnity and the Guarantor indemnifies the Contractor against all loss resulting from the Contractor’s inability to enforce performance of those obligations. The Guarantor must pay the Contractor the amount of the loss resulting from the unenforceability.
19.3 If there is more than one Guarantor, this guarantee binds them separately, together and in any combination.
20.1 In consideration of the company accepting an order from the Customer, the Customer warrants and assures that not patent, copyright, trademark, design or any other right is or will be infringed by reason of the Company accepting and carrying out the order and the Customer agrees to indemnify the Company against all losses, costs, expenses of whatever nature suffered or incurred by the Company in connection with any claim, action or proceeding by a third party.
20.2 The Customer acknowledges that all technical information, advice, know-how, drawings, designs and samples (‘the information’) submitted to the Customer by the Company are the confidential and proprietary information of the Company.
20.3 The Customer will keep ‘the information’ secret and confidential and not disclose it or any part thereof without the express authority of the Company. 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.
20.4 The Customer will not reproduce any part of the information in any form other than with the express authority of the Company.
This contract is governed by and will be construed in accordance with the laws of the State of Victoria.