Australia

Terms and Conditions

1. Payment and Consequences of Default

1.1        Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one point three percent (1.3%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

1.2        If the Applicant defaults in payment of any invoice when due, the Applicant shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and own client basis and the Supplier’s collection agency costs.

1.3        Without prejudice to any other remedies the Supplier may have, if at any time the Applicant is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Goods to the Applicant and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Applicant for any loss or damage the Applicant suffers because the Supplier has exercised its rights under this clause.

1.4        If any account remains overdue after ninety (*90) days then an amount of $300 shall be levied for administration fees which sum shall become immediately due and payable.

1.5        Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Applicant which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Seller becomes overdue, or in the Supplier’s opinion the Applicant will be unable to meet its payments as they fall due; or

(b) the Applicant becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Applicant or any asset of the Applicant.

1.6       All orders which are endorsed or described as “Pro Forma Orders” are firm, irrevocable and non-cancellable by the Applicant and must be paid for in full within 14 days from date of invoice. Where payment for a Pro Forma Order is not received within 14 days of the date of invoice, the order may be cancelled by and at the sole discretion of the Supplier and in such event the Applicant will be liable from the date of notice of cancellation for a cancellation fee equivalent to 20% of the invoiced cost or $50.00, whichever is greater.

1.7       All other orders made to the Supplier must be paid for within 30 days of the date of the Supplier’s Invoice (“the Payment Period”) and where payment in full is not received by the Supplier prior to the expiry of the Payment Period then the Applicant shall be liable to pay interest as defined in Clause 1.1

1.8       The Supplier is hereby irrevocably authorised to allocate the payment of any monies received from time to time from the Applicant towards any outstanding account incurred with the Supplier by the Applicant. All prices quoted shall be exclusive of Goods and Services Tax (“GST”) and GST will be payable on the sale price on payment of the invoice

 

2. Privacy Act 1988

2.1        The Client and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Seller.

2.2        The Client and/or the Guarantor/s agree that the Seller may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a) to assess an application by Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the credit worthiness of Client and/or Guarantor/s.

2.3        The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

2.4        The Client agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Client and Seller or required by law from time to time:

(a) provision of Goods; and/or

(b) marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or

(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods; and/or

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or

(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods.

2.5        The Seller may give information about the Client to a credit reporting agency for the following purposes:

(a) to obtain a consumer credit report about the Client; and/or

(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

 

3. Property In & Delivery of Goods

3.1       The Goods supplied by the Supplier to the Applicant shall be at the Applicant’s risk immediately on delivery to the Applicant or immediately on delivery as directed by the Applicant or immediately on collection by the Applicant’s transport contractor as the case may be.

3.2       Notwithstanding that the risk of loss or damage to the Goods passes to the Applicant in accordance with the previous sub-paragraph (a), property in and ownership of the Goods shall not pass to the Applicant until payment in full for the Goods shall have been received by the Supplier.

3.3       Until payment in full of the invoiced cost of the Goods shall have been received by the Supplier, the Applicant shall hold the Goods on a fiduciary basis as a bailee only for the Supplier and the Applicant shall (at its own expense) keep the Goods properly and safely stored separately from any other goods and stock of the Applicant and any other third party and in such a way as the Goods shall be readily identified as the Goods of the Supplier and the Applicant shall not, subject to sub-clause d(i), pledge, mortgage, charge or part with the Goods or attempt to do so without the prior written consent of the Supplier.

3.4       (i) Notwithstanding that the property in the Goods has not passed to the Applicant, the Applicant may resell the Goods or any part thereof in the name of the Applicant but only as agent for the Supplier and may deliver any such Goods to the buyer of them but only on terms which will not prejudice the Supplier’s ability to obtain the sale proceeds thereof. (ii) Any amount paid by the buyer of such Goods from time to time to the Applicant (hereinafter referred to as “the sale proceeds”) shall be held by the Applicant in trust for the Vendor, banked in a separate bank account relating only to the sale proceeds of the Goods of the Supplier under this and / or other contracts between the Supplier and Applicant and shall be forwarded as soon as possible after receipt to the Supplier.

(iii) If and when the full amount of the price of the Goods has been received by the Supplier, any further part of the price received by the Applicant upon any resale by it of the Goods may be retained by the Applicant as its commission for effecting such sale as agent for the Supplier.

3.5       An act of default of this contract shall be deemed to occur in the event of any of the following (and any of the acts described in sub-paragraphs (3.5) (i) to (iv) below are herein collectively referred to as an “Act of Default”)

(i) the Applicant failing to make payment in full of the invoiced cost of the Goods within 30 days from the date of invoice,

(ii) the Applicant, if required herein, failing to insure the Goods from the date of delivery thereof by the Supplier and to provide evidence of such insurance to the Supplier,

(iii) any distress or execution being levied upon the Applicant’s Goods or property,

(iv) the Applicant, being a company, becoming unable to pay its debts as they fall due, offering to enter into any scheme of arrangement with its creditors, the passing by the Board of Directors of the Applicant of any resolution to wind up the Applicant, the filing of any petition to wind up the Applicant or the appointment of an administrator or receiver / manager in respect of the Applicant’s affairs, the Applicant, in the case of a natural person, being declared bankrupt,

(v) immediately upon the Applicant committing any Act of Default any right to sell the Goods in which the title to property remains vested in the Supplier shall cease forthwith and the Applicant shall upon the happening of any Act of Default immediately place all of the Goods then remaining in its possession or under its control at the disposal of the Supplier and the Supplier is hereby irrevocably authorised by the Applicant to nominate a person to enter the Applicant’s premises during normal business hours for the purpose of repossessing such of the Goods still in the possession or under the control of the Applicant and where necessary to use no more than reasonable force to liberate and take possession of the Goods. Where the Goods are stored in a warehouse conducted by a person other than the Applicant immediately upon committing any Act of Default the Applicant shall be deemed to have irrevocably appointed the Supplier the attorney of the Applicant with the authority in the name of the Applicant to direct the warehouseman to release any of the Supplier’s Goods in the possession or under the control of the warehouseman whether or not the Payment Period has expired and the Supplier shall be at liberty to resell the Goods after repossession of the same pursuant to this clause.

3.6       Until the full amount of the price of the Goods due to the Supplier is received by the Supplier the Applicant

(i) shall maintain and keep full and up to date records of the Goods supplied by the Supplier including those Goods on-sold by the Applicant,

(ii) hereby irrevocably authorises the Supplier to enter its premises during normal business hours from time to time to inspect the residue of the Goods remaining unsold by the Applicant, the Applicant’s records relating to the Goods and also to inspect the accounts including bank accounts into which the proceeds of sale of that part of the Goods already sold are by this clause required to be deposited pending payment to the Supplier.

 

4. Returns and Credit

4.1       Any Goods purchased by the Applicant from the Supplier may only be returned to the Supplier where notification of the proposed return of the Goods is Received within seven (7) days of the date of delivery of the Goods to the Applicant and the Supplier has agreed in writing to accept the return of the Goods and the Goods are returned in good condition at the expense of the Applicant.

 

5. Miscellaneous Provisions

5.1       It is expressly agreed that any action, suit, dispute or proceedings arising from or in connection with the sale of goods pursuant to this Agreement or any matter between the parties hereto may be instituted, heard and determined in a court of competent Jurisdiction in the State of New South Wales or of such Other State of Australia nominated in writing by the Supplier and each party irrevocably submits to the jurisdiction of such court for the purpose of any such dispute, action, suit or proceedings.

5.2       The Applicant hereby irrevocably authorises the Supplier from time to time, in order to assess any application for credit, to obtain any information about the Applicant from any credit provider named in this application and also Gift & Homewares Australia to obtain a credit report in respect of the Applicant from any credit agency and to provide any information contained on this credit application form and also details of the performance of the Applicant in compliance with the trading terms and conditions herein to other credit providers, credit agencies and to Gift & Homewares Australia.

5.3       The Applicant further authorises the latter company to make such information available to other credit providers.

5.4       Freight and transport costs from the Supplier’s nominated warehouse and intransit insurance incurred in respect of the Goods are at the cost and liability of the Applicant and are not included in the invoiced price of the Goods.

5.5       The word “Goods” shall be deemed to refer to any goods obtained by the Applicant from the Supplier from time to time pursuant to this Agreement.

5.6       The Applicant shall be liable for and shall promptly pay to the Supplier;

(i) any legal costs incurred by the Supplier on a solicitor/client basis

(ii) any court, bailiff costs and services fees incurred by the Supplier

(iii) any fees paid to a debt collector in respect of any action or court proceedings taken by or on behalf of the Supplier for the recovery of any monies due by the Applicant to the Supplier pursuant to this Agreement.

5.7       Service of any notice or document pursuant to this Agreement may be effected in any manner prescribed by Section 170 Conveyancing Act 1919 as amended (New South Wales) or any section or provision in substitution therefore.

5.8       The Supplier reserves the right to terminate this Credit Agreement at any time immediately upon service upon the Applicant of written notice of termination without providing any reason therefore.

5.9 Exclusive and protected territory availability is subject to the discretion of “Think Outside its sales representative and associates. We reserve the right to limit the number of locations within a particular area.”