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© FANTECH
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CONDITIONS OF TRADING - AUSTRALIA
(iv) Notice is given terminating the Buyer's right to sell goods; or
(v) This agreement is terminated.
15.14 In addition to its rights under the PPSA, for the purpose of recovery of the goods, the
Company may by the Company's employee(s) or agent(s) enter upon any premises
where the goods are stored or where they are reasonably thought to be stored and
may repossess the same. This permission is irrevocable and the Buyer agrees that
the employees, servants or agents of the Company so entering are not trespassing.
The Buyer irrevocably agrees that the Buyer will not seek to invoke the provisions of
any Acts to warn such persons to leave the Buyer's premises, nor will the Buyer
procure any other person to take such action. The Buyer indemnifies that Company
from and against all costs, claims, demands or actions by any party arising from such
action.
15.15 Any goods held by the Buyer which meet the description of goods on an invoice in
respect of which either payment has not been made in full or in respect of which title
to goods has not been transferred from the Company hereunder shall, in the
absence of separate storage of goods in terms of this Clause and in the absence of
evidence to the contrary, be deemed to be goods to which the company has retained
title so that the Company shall be entitle to exercise any of the Company's remedies
hereunder against such goods.
15.16 If the Buyer has not received the proceeds of the sale of the goods subject to this
clause then the Buyer will within seven (7) days of being called upon to do so by the
Company assign to the Company all rights which the Buyer may have against the
person or persons to whom the Buyer has supplied the goods.
15.17 Following repossession of the goods the Company shall sell the goods in whatever
manner the company deems appropriate whether wholesale or retail, and shall credit
the amount of the Buyer with the net proceeds of the sale. The net proceeds of sale
shall be the actual price received for the goods less all costs of sale including if
incurred, rental of premises, staff wages, transport costs, advertising costs and all out
of pocket expenses. The Company shall be obliged to list all goods repossessed but
shall not be obliged to record or account for the sale of goods on an item by item
basis. Proceeds of sale may be accounted for globally.
16. GST AND OTHER TAXES
16.1 If the Company makes a taxable supply pursuant to A New Tax System (Goods and
Taxation) Act 1999 as amended, except where indicated otherwise, the amount
payable for the taxable supply will be expressed as a GST inclusive amount.
16.2 The Buyer is liable to pay for the taxable supply and must upon receiving a tax
invoice, also pay for any amount of GST that accrues in respect of the taxable supply
at the same time as payment for the taxable supply due.
16.3 In addition to the price of goods and any other charges it is entitled to make the
Buyer, the Company shall be entitled to charge the Buyer the amount of any sales
tax, goods and service tax, excise, value added or other tax, impost or duty payable
by the Company in respect of the goods.
17. RECOVERY COSTS:
The Buyer shall pay all accounting fees, legal and administrative
costs and expenses incurred by the Company, its legal advisers, mercantile agents and
others in respect of overdue accounts or other defaults in respect to this Contract.
18. JURISDICTION:
This Contract shall be governed by and interpreted in accordance with
the laws of the State of Victoria and where appropriate the laws of the Commonwealth of
Australia and the parties shall submit to the exclusive jurisdiction of the courts of the State
of Victoria.
19. CONFIDENTIAL INFORMATION
19.1 "Confidential Information" means all price lists, terms and conditions of sale,
promotional strategies and information about the products supplied by the Company
which may be disclosed by the Company to the Buyer at any time but does not
include information which:
(i) Is or has become publically available otherwise than due to disclose in breach of
this Contract;
(ii) Is received from a third party and was not acquired directly or indirectly from
either party in breach of an obligation of confidence.
19.2 The Buyer must:
(i) Only use the Confidential Information for the benefit of the Company and for the
purpose of ordering goods from the Company; and
(ii) Keep the Confidential Information confidential except for disclosure required by
law or to employees who have been directed to keep the Confidential Information
confidential and
(iii) Ensure that any employee to whom the Buyer discloses the Confidential
Information, keeps the Confidential Information confidential and only uses it for
the benefit of the Company and for the purpose of ordering goods from the
Company; and
(iv) Return any Confidential Information on request of the Company.
20. VALIDITY:
If any covenant or obligations of this Contract shall be or become invalid or
unenforceable, the remaining covenants and obligations shall not be affected thereby and
each covenant and obligation of this Contract shall be valid and enforceable to the fullest
extent by the law.
21. PRIVACY POLICY:
The Company complies with the Privacy Act 1988 as amended and is
bound by the Australian Privacy Principles dealing with the collection, use and storage of
personal information about individuals. The Buyer agrees the Company can share credit
information with credit providers, credit reporting agencies, and can seek credit
information from such agencies to establish the credit worthiness of the Buyer. The Buyer
also agrees that the Company may conduct a search of the Personal Property Securities
Register for the purpose of establishing the credit worthiness of the Buyer.
22. WAIVER:
The Company's failure to enforce any of the terms of this Contact shall not be
construed as a waiver of any of the Company's rights.
23. ASSIGNMENT:
23.1 The Company may assign and/or novate its rights and/or obligations under these
Conditions and any Contract to any third party without the Buyer's consent.
23.2 The Buyer may not assign its rights and/or obligations under these Conditions and
any Contract to any third party without the Company's consent. A change in control
or in the beneficial ownership of the Buyer will be deemed to be an assignment.
24 TRUSTS
24.1 In the case of a Trust, the Buyer acknowledges and represents that:
(i) The trustees of the Trust will be liable for complying with these Conditions and
each Contract; and
(ii) The assets of the Trust will be available to meet payment for the Goods.
11.2 In the event of a default by the Buyer the company may determine this Contract or
suspend any further deliveries and shall be entitled to recover as damages from the
Buyer the following:-
(i) the value including any work completed or goods manufactured at the date of
determination;
(ii) the value of any work begun or goods begun to be manufactured at the date of
determination;
(iii) the value of any work begun or goods begun to be manufactured but not
completed at the date of determination including the cost of materials, labour,
overheads and profit in connection therewith;
(iv) a sum representing any further profit which the Company would have made on the
Contract but for its determination such profit to be determined by the Company's
Auditors whose decision shall be conclusive and binding on the Buyer.
12. STORAGE
: If for any reason the Buyer fails to take possession of the goods within seven
(7) days from the date on which the Buyer is notified that the goods or part thereof are
ready for delivery, then notwithstanding clause 6.1 and 15.2 risk in the goods shall forthwith
pass to the Buyer and the Company shall be entitled to payment for the goods in
accordance with the provisions hereof. In the event that the Buyer fails to take possession
of the goods within the said period of seven (7) days, the Company may arrange storage
of the goods at its warehouse or some other suitable place and all costs of an incidental
nature to which storage shall be to the account of the Buyer.
13. SET OFF:
The Buyer shall not be entitled to withhold or set off payment of any amount due
to the Company under any terms of the Contract whether in respect of any claim of the
Buyer in respect of faulty or defective goods or for any other reason which is contested or
liability for which is not admitted by the Company.
14. FORCE MAJEURE CLAUSE:
In the event of war, invasion, act of foreign enemy, hostilities
(whether war has been declared or not), civil war, rebellion, revolution, insurrection or
military or usurped power the Company shall be relieved of liabilities incurred under this
Contract wherever and to the extent to which the fulfilment of such obligations is
prevented, frustrated or impeded as a consequence of any such event or by any statute,
rules, regulations, order or requisitions issued by any government department, council or
duly constituted authority or from strikes, lockouts, breakdown of plant or any other causes
(whether or not of a like nature) beyond the Company's control. If an event of force
majeure occurs, the Company may suspend or terminate the Contract by written notice to
the Buyer.
15. PERSONAL PROPERTY SECURITIES ACT 2009 ("PPSA")
15.1 Notwithstanding anything to the contrary contained in this Contract, the PPSA
applies to this Contract.
15.2 For the purposes of the PPSA, terms used in this clause 15 that are defined in the
PPSA have the same meaning as in the PPSA.
15.3 In placing any order the Buyer expressly represents that the Buyer:
(i) Is solvent; and
(ii) Has not committed an act of bankruptcy; and
(iii) Knows of no circumstances which would entitle any debenture holder or secured
creditor to appoint a receiver or which would entitle any creditor or shareholder
to apply to the Court to liquidate the Company or exercise any other rights over
or against the Buyer's assets.
15.4 The title or property in any goods delivered by the Company to the Buyer shall pass
to the Buyer only upon payment in full by the Buyer to the Company of all moneys
owed to the Company. The Company holds a Purchase Money Security Interest in all
present and future goods supplied to the Buyer for payment of those moneys.
15.5 The security interest is a continuing interest irrespective of whether there are monies
or obligations owing by the Buyer at any particular time.
15.6 The security interest arising under this clause 15 attaches to the goods when the
goods are dispatched and not at any later time.
15.7 Until all moneys due to the company are paid by the Buyer, the Buyer agrees to act
as a fiduciary of the Company and that the Buyer will:
(i) Not sell, charge or part with the possession of the goods, otherwise than for their
full values in the ordinary course of business;
(ii) Not alter, obliterate or deface the goods and will not alter, obliterate, deface, over
up, or remove any identity mark indicating that the goods are the Company's
property.
(iii) Store the goods in such a manner that they are clearly identifiable as the
Company's property and must keep separate records of the goods;
(iv) Hold the proceeds of the resale of the goods in trust for the Company, in a
separate and identifiable account with a bank to whom the Buyer has not given
security.
15.8 At the Company's request, the Buyer will promptly deliver, execute or do (or cause to
be executed, delivered or done) any documents, contracts, agreements, deeds or
other action that the Company may require from time to time to give effect to this
Contract, including without limitation doing all such things as the Company may
require to ensure that the Security Interest created under this Contract constitutes a
perfected Security Interest over the goods. This includes, but is not limited to,
providing any information the Company requests to complete a financing change
statement for the Personal Property Securities Register.
15.9 The Supplier may allocate amounts received from the Buyer in any manner the
Company determines, including in any manner required to preserve any Purchase
Money Security Interest it has in the goods supplied by the Company.
15.10 Where permitted:
(i) The Buyer waives any right to receive a verification statement under the PPSA.
(ii) Nothing in sections 130(1)(a), 143(1) and 143(2) of the PPSA shall apply to this
Contract.
(iii) The Buyer's rights as a debtor in sections 92. 95, 97, 132 and 134(2) of the PPSA
shall not apply to this Contract.
15.11 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that
this Contact and any information pertaining to the sale of goods and details of the
goods shall be kept confidential at all times. Neither party may disclose any
information pertaining to this Contract or the sale of any goods, except as otherwise
required by law or that is already in the public domain.
15.12
The Buyer's right to sell goods will terminate forthwith on written notice of such
termination being delivered by the Company to the Buyer's place of business.
15.13 The Buyer's right to possession of the goods shall cease if:
(i) The Buyer commits an available act of bankruptcy; or
(ii) The Buyer does anything or fails to do anything in circumstances where such an
act or omission operates to entitle a receiver or liquidator to take possession of
any assets or which would entitle any person to apply to the Court to liquidate
the Buyer; or
(iii) The Buyer is overdue in making payment of any sum due to the Company and
the Company makes demand. Demand may be made upon the Buyer or any
other employee or authorised agent of the Buyer by the Company the Company
or any employee or authorised agent of the Company either in writing at any time
prior to repossession or verbally or in writing at the time of repossession; or
REFERENCE INFORMATION