Payment on Delivery Trading
Credit Account Trading (to approved applicants)
1.1 In this Terms and Conditions:
a) The ‘Supplier’ means PAWON Pty Ltd ABN 45 152 652 189 t/a HiLands Foods stated in the Application for Payment on Delivery and Credit Account Trading respectively or any other body corporate as defined in the Corporations Act 2001, and its successors and assigns, hereinafter called the Supplier.
b) The ‘Client’ means the entity stated in the Application for Payment on Delivery and Credit Account Trading respectively, its successors and assigns and any other person offering to contract with the Supplier on these terms and conditions or where such person is acting in the course of employment such persons as employer; hereinafter called the Client.
2.1 The Supplier shall be at liberty to retain any of its authorised agents or any other entity it sees fit and at the sole discretion of the Supplier and the Client consents to such disclosure of information about the Client or its contacts to these agents.
3.0 BUSINESS OWNERSHIP
3.1 The Client agrees and declares that business information and business entity details provided are true and accurate.
3.2 The Client agrees that any change of ownership, legal entity or address will be notified to the Supplier within fourteen (14) days of the change.
3.3 The Client agrees should there be any variation to any of the information supplied by the Client in the Application or in the structure of the Client’s business (such as a conversion to or from a company or trustor the appointment of new directors), the Supplier shall be notified within fourteen (14) days of the change; or
3.4 A new Payment on Delivery and Credit Trading Application form is signed and approved by the Supplier, then the original Payment on Delivery and Credit Trading Application and those persons who signed as guarantors shall remain liable to the Supplier as though all goods and services were supplied to the original owner.
4.0 TITLE OF PROPERTY
4.1 The goods supplied to the Client, ownership and property in the goods vests absolutely with the Supplier and not pass to the Client until the Client:
a) Pays for the goods in full;
b) Pays in full all the monies owing or unpaid by the Client to the Supplier including monies in respect of goods previously supplied to the Client by the Supplier.
4.2 In relation to goods supplied to the client for which payment in full has not been received:
a) The relationship between the Client and the Supplier shall be fiduciary;
b) The Client will hold those goods as Bailee for the Supplier;
c) Where the Client sells those goods, the Client does so as fiduciary agent of the Supplier;
d) When new goods or objects are formed with the Supplier’s goods into other products or the goods are affixed to other objects the Supplier will be given full ownership of such new goods or objects.
e) Where the goods are disposed of, the monies resulting from the disposal and all other proceeds received in respect of the goods, including insurance proceeds will be kept separately in trust for the Supplier.
f) Where the goods are disposed of, the Client may only dispose of goods in the ordinary course of business on commercially reasonable terms.
g) The Client undertakes that until it delivers the goods to a third party it will store the goods on its premises separately from its own goods or those of any other person, and in a manner which makes the goods readily identifiable as the Supplier’s goods.
5.1 Should the Supplier elect to post any goods or organise delivery of any goods, the Client’s risk of loss or damage to such good passes to the Client on the date and at the time that the goods were received by the Client. It is the Client’s responsibility to ensure these goods are insured and covered.
5.2 The Supplier shall not be responsible for any non-delivery or delay in delivery of any goods. Where such non-delivery or delay occurs, the Supplier may deliver the goods at any subsequent time and the Client must accept and pay for them.
5.3 The Supplier does not provide any insurance.
5.4 The Client acknowledges that insurance is the responsibility of the Client at the point of delivery.
6.0 TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
6.1 The Supplier’s tender of delivery of goods and services under this Agreement is a condition of the Client’s duty to accept the goods or services provided and unless otherwise agreed, the Client’s duty to pay for them.
7.1 The Client agrees to pay all amounts due in within the Supplier’s agreed timeframe:
a) Within thirty (30) days from the invoice date but not later than thirty-two (32) days for Credit Accounts.
b) Payment on delivery or no later than forty-eight (48) hours from receipt of goods for Payment on Delivery Accounts.
7.2 The Client agrees that if it fails to pay in accordance with this clause the Supplier may:
a) Charge a late payment fee of 5% on all amounts paid after the due date;
b) Charge interest on debts at 15% per annum from time to time;
c) Charge a dishonour handling fee in the amount of $50.00;
d) Charge a fee of $50.00 if the supplier has to call in more than twice to collect payment.
e) Recover all collections costs and expenses incurred in collecting overdue accounts on an indemnity basis;
f) Withhold supply;
g) Sue for the money owing on the goods and services provided.
7.2 In the event where this agreement has been entered into by more than one party each party shall be jointly and severely liable for any amounts overdue.
7.3 The Client agrees to pay by due dates by:
a) Cash; or
b) Electronic Funds Transfer (EFT); or
d) Credit Card (1.0% or $3.85 surcharge applies – whichever is less. Fees is inclusive of GST)
8.1 The Supplier shall be entitled at any time to assign its rights under this Terms and Conditions to its successors, nominated transferees or assigns and that these Terms and Conditions will not be in any way affected or discharged pursuant to any such assignment.
8.2 The Supplier shall be entitled at any time to assign its rights to Thorn Trade & Debtor Finance. This may be an ongoing agreement between the Supplier and Thorn Trade & Debtor Finance. In the event the invoice is assigned the Client will be advised in writing. The Client agrees to pay all dues on or before due dates to Thorn Trade & Debtor Finance if assigned.
9.1 If the Client:
a) Fails to pay for any goods or services on the due date; or
b) Or otherwise breached this agreement and failed to rectify such breach within seven (7) days’ notice; or
c) Cancel delivery of goods or services; or
d) Commits an act of bankruptcy or allows a trustee in bankruptcy or receiver and manager to be appointed to the Client or any of its property; or
e) Allow a judgement or order to be enforced or become enforceable against the Client’s property; or
f) Permits proceedings to be commenced to wind up the Client or controller, receiver, administrator, liquidator or similar officers appointed to the Client in respect of any part of its property.
9.2 The Supplier may enter the Clients premises (doing all that is necessary to gain access) where goods supplied under this contract are situated and at any time and re-take possession of any or all of the goods the Supplier has supplied to the Client and:
a) Resell the goods concerned;
b) Terminate the agreement; and
c) Revert account to Cash on Delivery (COD);
d) Sue any monies owed.
9.3 The Client will be in default if the Client does not pay any monies payable when called upon. The Client and Guarantor jointly and severally acknowledge and agree the Supplier is authorised to contact a credit reporting agency throughout the term of the Agreement to obtain a report about the creditworthiness of either the Client or the Guarantor or both.
9.4 The Client and the Guarantor jointly and severally authorise the Supplier to engage in exchange of information with a credit reporting agency or with other such parties as are necessary to give effect to the contract and to the ongoing relationship between the parties hereto.
9.5 The Supplier reserves the rights to refer a Client’s delinquent account to a debt collection or issue legal proceedings to recover any outstanding invoices debt collection agency or issue legal proceedings to recover any outstanding invoices should the payment remain outstanding for more than forty-five (45) days.
9.6 The Supplier reserves the rights to report a Client’s delinquent account to a credit rating agency should the payment remain outstanding for more than ninety (90) days.
9.7 Should an invoice be referred for debt collection the Client acknowledges and agrees to pay debt collection charges to be calculated at not less than 20% plus GST and will be incurred on the day the Supplier refers the matter to their nominated debt collection agency. The Client shall also be liable for interest and all legal recovery costs associated with such action on a solicitor and own client or indemnity cost basis.
10.1 If the Client disputes any goods sold or services supplied by the Supplier are faulty or defective or disputes the invoices the Supplier has issued; the Client must notify their reasons to the Supplier within five (5) days from the invoice date. Failing that the Client may lose any rights to dispute the quality of the goods, services or quantum of.
11.1 All goods carry only such warranty, if any, as is furnished by the manufacturer thereof or as implied by law.
11.2 The Supplier warrants their products for its materials are free from faulty workmanship for a period ‘best before’ or ‘use by’ or as specified from date of delivery.
11.3 This warranty excludes those damages caused by the neglect or misuse of goods supplied.
12.1 The Client must at all times provide suitable access to the site to enable the Supplier, and its agents to deliver the goods ordered by the client.
12.2 The Client must ensure that its site is safe for the Supplier and its agent to enter.
12.2 The Client indemnifies and saves harmless the Supplier, and its Agents against any loss or damage, in the event the Client failed to provide suitable access to the site for delivery, and/or whilst working on site.
12.3 The Client irrevocably permits the Supplier or any other person authorised by the Supplier upon giving reasonable notice to enter the Clients premises or at premises where the goods are reasonably believed by the Supplier to be held on the Client’s behalf for the purpose of examining and recovering the goods.
12.4 The Client also agrees to indemnify and hold the Supplier harmless for reasonable costs of removal, enforcement and legal action in respect of the removal of any goods, the subject of this Agreement.
13.0 WHOLE AGREEMENT
13.1 These Terms and Conditions together with the Application for the Payment on Delivery and Credit trading agreement embody the whole agreement between the parties.
13.2 Subject to the express terms contained in any written acceptance thereof, all previous dealings, representations, and arrangements are hereby excluded and cancelled.
14.1 The Client charges in favour of the Supplier any land it owns or acquires after the date of this agreement as security for any and all monies owed to the supplier and hereby authorises and consents to the Supplier registering a caveat over the land if the Client defaults in making payment of any amounts owing to the Supplier.
15.1 The Client agrees that:
a) The Supplier may set-off any credit amount that the Supplier owes to the Client against any debt due by the Client to the Supplier at the Supplier’s sole discretion.
b) The Client is not entitled to withhold payment of any money in respect of any alleged set-off or claim the Client might have against the Supplier.
16.0 SEVERANCE AND WAIVER
16.1 If any part of this Agreement is found to be void, unlawful, or unenforceable then that part will be deemed severed from the Agreement.
16.2 The severed part will not affect the validity and enforceability of any remaining provisions.
16.3 Any waiver of the Supplier’s rights under this agreement must be in writing and signed by an authorised representative of the Supplier.
17.0 RIGHT TO AMEND TERMS AND CONDITIONS
17.1 The Supplier reserves the rights to amend the terms and conditions of this agreement by giving the Client notice in writing of the amended terms and conditions.
17.2 Such notices to be either:
a) Posted to the Clients address specified on the face of the agreement, or
b) Emailed to the Client as specified from time to time.
17.3 The Client is deemed to accept any amended terms and conditions unless it notifies in writing within seven (7) days of its objection to the proposed amendment to the Terms and Conditions.
18.0 GOODS AND SERVICES TAX
18.1 The Supplier is required by law to pay Goods and Services Tax (GST) on goods applicable.
18.2 GST will be in addition to the quote/estimate unless stated otherwise.
19.1 The agreement shall be deemed to have been made in NSW and shall be interpreted in accordance with the Laws of NSW, Australia and the parties submit to the exclusive jurisdiction of NSW Courts.
20.0 CONSUMER CREDIT CODE
20.1 The Client and Guarantors declare that the credit to be provided is to be applied wholly or predominantly for business purposes and not for personal, domestic or household purposes.
21.0 CLIENT ACKNOWLEDGMENT
21.1 To having received the Trading Terms and Conditions which were part of the trading application.
21.2 That if the Client is a Company then Directors’ Indemnity is part of this Application.
21.3 Acknowledgement/Receipt of goods is proof of delivery.
21.4 The Client by its Director(s)/Proprietor(s)/Partners/Individual(s), agree and guarantee to the Supplier the due and punctual payment of all money presently or any money that may be owing in future and any other payable to the Customer to the Supplier pursuant to the Supplier’s Terms and Conditions.