Kagenact Pty Ltd ACN 124 278 002 trading as Veridia Australia (The Supplier)
TERMS & CONDITIONS OF TRADE
These Terms and Conditions apply to the exclusion of all others including terms and conditions incorporated in any purchase order. The Supplier supplies only on these terms and conditions and any Customer taking delivery of goods and services shall by doing so agree to these terms and conditions applying to the exclusion of all other terms and conditions. If a provision of these Terms & Conditions is wholly or partly invalid or unenforceable, that provision or that part of it that is invalid or unenforceable must, to the extent, be deleted from these terms and conditions. Nothing affects the validity or enforceability of the remaining Terms & Conditions. In these terms and conditions the Applicant and\or Customer (“the Customer”) means the party accepting the terms and where applicable includes their\its directors, employees, contractors or agents. “Goods” or “Products” means the goods or products supplied to the Customer from time to time to pursuant to these Terms and Conditions and form the Collateral for the purposes of the PPS Act.
All goods and quotes for services are supplied at the current list price at the time of order or the amount set out in any current written quote at the time of order. All prices for goods and products are ex-warehouse from the place of distribution as described a quote unless otherwise stated in writing. Transport and delivery charges (if applicable) are payable by the Customer in addition to any quoted price.
Terms of payment will be cash prior to delivery other than for Customers who have approval in writing for credit accounts. The Supplier reserves the right to withhold further services in circumstances where terms of payment have not been met by the Customer. If the Customer fails to pay any moneys owing to the Supplier within credit terms, such overdue moneys shall accrue interest from day to day at a rate equal to 10% per annum on such moneys after the due date of the invoice, until all moneys are paid in full. In additional to any payment or interest due to the Supplier in accordance with this clause, the Customer shall be liable for all reasonable legal and debt collection costs incurred by the Supplier in relation to collection of any payment due by the Customer on a full indemnity basis.
4. Risk & Ownership
4.1 The risk of loss or damage to Products shall pass to the Customer at the time that the Products are delivered to the Customer.
4.2 Title to Products shall remain with The Supplier, and the Customer acknowledges and agrees that The Supplier is hereby granted a Security Interest in the Products, until full payment is made of all moneys owing to The Supplier from time to time.
4.3 Until the Supplier has been paid all moneys owed by the Customer:
(a) the Customer shall hold the Products as bailee of the Supplier, subject to the Customer’s right to deal with the Products in the ordinary course of the Customer’s business; and
(b) the Customer shall indemnify the Supplier against any claim arising out of the possession, use or disposal of the Products by the Customer.
4.4 To the extent permitted by law, if there is a default under these Terms and Conditions of Trading or the Customer fails to make payment of any monies by the due date, each Security Interest created in the Supplier’s favour will become immediately enforceable. If:
(a) a payment is not made by the Customer in accordance with these terms; or
(b) The Supplier receives notice of or reasonably believes that a third person may attempt to levy execution against any Products; or
(c) an Insolvency Event occurs, then the Supplier may, at any time without notice to the Customer, and without prejudice to any other rights that it may have against the Customer:
(d) terminate the bailment referred to above; and
(e) enter upon any premises of the Customer (including any Outlet) where the Supplier reasonably believes Products may be stored and retake possession of the Products without liability for trespass or any resulting damage;
(f) keep or resell the Products repossessed pursuant to paragraph (e) and pay any expenses incurred in the exercise of the Supplier’s rights from such realisations.
4.5 The Supplier has, to secure all monies payable by the Customer to the Supplier at any time, a PMSI in each of the Products supplied to the Customer from time to time and the Supplier’s Security Interest shall extend to the Proceeds (including any Account) and Accessions. To the extent that the PPS Act provides that the Supplier does not have a PMSI in the Products and any Proceeds arising in respect of the Products, the Customer agrees that the Supplier continues to hold a Security Interest in the Products. The Security Interest will continue until the Supplier provides the Customer with a final release.
4.6 The Customer agrees to execute any documents, provide all relevant information and full cooperation to the Supplier to ensure that the Supplier has a Security Interest in the Products and the Proceeds, and if applicable, a PMSI.
4.7 The Customer agrees that if the Supplier has any rights in addition to the PPS Act, those rights continue and are in addition to the rights of the Supplier under the PPS Act.
4.8 The Customer hereby authorises the Supplier as the Customer’s authorised representative to request any information under section 275 of the PPS Act from any Secured Party in relation to any Security Interest.
4.9 The Customer must give the Supplier 10 Business Days prior written notice of any proposed change in name and any change in details of the Customer, including without limitation, the Customer’s address, email, facsimile or business practice.
4.10 The Customer must not, without the Supplier’s written consent, file, lodge or serve a Financing Change Statement or an Amendment Demand.
4.11 The Customer must not permit any Products to become an Accession to or to be manufactured, processed, assembled or commingled with anything that the Supplier does not own or is not subject to a perfected Security Interest in favour of the Supplier, and even then only if the priority of that Security Interest is no less favourable than the priority of the Supplier’s Security Interest in those Products.
4.12 The Customer must:
(a) do or cause to be done anything which the Supplier considers necessary or desirable to perfect and protect any Security Interest provided for by these Terms and Conditions of Trading; and
4.13 If the Customer disposes of the Products in a way that gives rise to an Account, the Customer grants the Supplier a Security Interest in that Account.
4.14 The Customer acknowledges that the Supplier may register one or more Financing Statements (or Financing Change Statements) in relation to any Security Interest provided for by these Terms and Conditions of Trading. If permitted by the PPS Act, the Customer waives its right under section 157 of the PPS Act to receive notice of any verification statement relating to the registration of any such Financing Statement or any related Financing Change Statement.
4.15 To the extent that Chapter 4 of the PPS Act would otherwise apply to an enforcement by the Supplier of any Security Interest provided for by these Terms and Conditions of Trading, the Supplier and the Customer agree with each other that the following provisions of the PPS Act do not apply:
(a) to the extent that section 115(1) of the PPS Act allows them to be excluded: sections 95, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143 and any other provision of the PPS Act notified to the Customer by the Supplier after the date of these Terms and Conditions of Trading; and
(b) The Supplier need not give any notice (including notice of a verification statement) required under any provision of the PPS Act. If section 115(1) of the PPS Act does not allow section 125 of the PPS Act to be excluded, the Customer agrees that at any time after any Security Interest provided for by these Terms and Conditions of Trading has become enforceable, the Supplier may delay disposing of, or taking action to retain, the whole or part of the Collateral to the extent permitted by law.
Collateral, Secured Party, Security Interest, Account, Accession, Personal Property, Possession, Proceeds, Secured Party, Security Interest all have the same meaning as that term is defined in the PPS Act.
PMSI means a purchase money security interest as that term is defined in the PPS Act.
PPS Act means the Personal Property Securities Act 2009.
Privacy Act means the Privacy Act 1988 (Cth) including the National Privacy Principles, as amended.
Product or Goods means the products and goods supplied under these terms.
Insolvency Event means any of the following events:
(a) an application is made or an order is made, proceedings are commenced or other steps are taken for the receivership, winding up, dissolution, official management or administration of the Customer;
(b) the Customer enters into an arrangement, compromise or composition or assignment for the benefit of its creditors or any class of its creditors;
(c) a receiver, a receiver and manager, liquidation, provisional liquidator, administrator, trustee in bankruptcy or similar officer is appointed to the Customer or any of its property or a distress, attachment or other form of execution is levied or enforced or if a mortgagee or charge enters or takes possession of any of the Customer’s property.
5. Exclusion/Limitation of liability
In so far as is possible all warranties whether by statute or common law in relation to the supply of goods and products by the Supplier are expressly negatived and do not apply. The Supplier is not liable to the Customer, and the Customer releases The Supplier, from any breach of contract or duty of care.
The Customer acknowledges that the Supplier is not responsible for, and releases and discharges the Supplier from, any direct, indirect or consequential loss or expense suffered by the Customer or any third party, howsoever caused from the supply of any services and use of the goods and products including breach of statutory or common law warranties and negligence. If any dispute arises, as a result of the use of the goods or services, the Customer will exclude the Supplier from any dispute or claim, action or court proceeding.
Further, the Customer agrees to indemnify the Supplier from and against all liability and losses (including costs on a full indemnity basis) which may be incurred by the Supplier as a result of any such dispute, action or court proceedings including any claim made by a third party. To the extent permitted by law, the absolute limit of the Supplier liability under any condition or warranty that cannot be legally excluded is limited to the replacement or repair or re-supply of equivalent products or services.
The Customer acknowledges that the Supplier is not responsible for, and releases the Supplier from, any direct, indirect or consequential loss or expense suffered by the Customer or any third party, howsoever caused from the supply and use of the goods and products. The Customer warrants that it has obtained all approvals and consents required from the appropriate consent authority for any works to be carried out by the Supplier and indemnifies the Supplier against all liability and losses (including costs on a full indemnity basis) which may be incurred by the Supplier as a result of beach of such warranty. Such Financing Statement or any related Financing Change Statement.
The Supplier may collect, use and disclose Personal Information about the Customer and any Guarantor for the primary purpose of providing the Products to the Customer including but not limited to determining whether to accept an Account Application of the Customer, start, stop or limit the supply of the Products to the Customer, billing and account management.
The Supplier may receive and disclose Personal Information or documents about the Customer or any Guarantor to or from credit providers or credit reporting agencies for the purposes permitted under the Privacy Act, law enforcement agencies to assist them in prevention of criminal activity or as provided for in any Account Application.
7.1 The Guarantor expressly and unconditionally guarantees to the Supplier the due and punctual performance of all terms and conditions and obligations of the Customer, and the Guarantor indemnifies The Supplier from and against all loss, damage, costs and expenses which may be suffered or incurred by the Supplier in consequence of or in relation to or arising out of any default by the Customer under any provision of these Terms and Conditions of Trading or any sale invoice.
7.2 The guarantee provided under this clause shall be a continuing guarantee and shall remain in full force and effect notwithstanding the liquidation of or the appointment of a receiver or a receiver and manager or a scheme manager or an administrator to the Customer or a controller to the assets of the Customer, and shall be irrevocable and shall remain in full force and effect until all terms and conditions and obligations of the Customer have been discharged and satisfied in full. This guarantee and the liability of the Guarantor shall not be affected, prejudiced or abrogated by the granting of time, credit or other indulgence or concession by the Supplier to the Customer or by any variation or alteration of or modification to the terms of these Terms and Conditions of Trading or any Sales Agreement, whether with or without the consent of the Guarantor.
7.3 The Guarantor agrees to grant to the Supplier a legal mortgage of any land at any time held by the Guarantor and as beneficial owner charges in the Supplier’s favour all property, assets and undertakings at any time held by the Guarantor as security for the payments required to be made and performance by the Customer of its obligations under these Terms and Conditions of Trading or any Sales Agreement. The Guarantor acknowledges and agrees that the Supplier may lodge a caveat on title of any property held by any Guarantor or register a charge in favour of the Supplier in respect of any or all property, assets and undertakings of the Guarantor, and the Guarantor shall not make any objection, requisition or claim in relation to any such caveat or charge and will sign all documents and offer all assistance necessary to give effect to this clause.
8. Force Majeure
No party will be liable nor deemed to be liable to the other party for failure or delay in meeting any obligation under these terms and conditions or any associated supply agreement due to (force majeure event):-
- strikes, industrial disputes and/or lockouts (whether of their own employees or those of others which directly affect a party and whether or not the party against whom such action is taken could have avoided the same by acceding to the demands of the employees responsible for such action);
- acts of God, natural disaster, war, fire, earthquake, flood, embargo, acts of terrorism, litigation (which prevents the operation of normal business activities), acts of government or any agency instrumentality or any political subdivision thereof or any other cause beyond the control of the party which had the duty to perform;
- Pandemic, contagion, infectious disease or any other government declared public health risk
In any such force majeure event, the time for performance of the obligations of a party will be extended by the same period or periods (as the case may be) for which performance is delayed. The party so affected will use its best endeavours to avoid or remove such causes of non‑performance and will continue performance hereunder with the utmost despatch as soon as such causes are removed. Nothing in this clause will be construed as requiring the affected party to settle any industrial dispute.
Where a force majeure event affects the cost of the Supplier performing its obligations under these terms and conditions or any associated agreement, any agreed fixed or contract price may be adjusted at the sole discretion of the supplier to reflect the additional or changed cost of the Supplier meeting its obligations under these terms and conditions or any associated agreement during the period of the force majeure event.
9. Assignment of Warranty/Guarantee
When goods and products are supplied by the Supplier which have been manufactured by a third party, the Supplier agrees to assign to the purchaser on written request by the purchaser, the benefit of any warranty or guarantee to the goods and products that the manufacturer has granted to the Supplier under any contract or by implication or operation of law to the extent that the benefit of any warranty or guarantee is assignable.
10. Governing Law
The parties agree to submit exclusively to the jurisdiction of the courts of New South Wales.