Terms and Conditions of Trading
MELSTEEL PTY LTD (ABN 13 006 287 038) (”Company”)
1.Throughout the Terms and Conditions
(i) ”Company” shall mean the Company named above;
(ii) ”Purchaser” shall mean the person, firm or corporation (including the Purchaser’s employees, servants, agents, successors and assigns having apparent authority to act or sign any document on behalf of the Purchaser), to whom each invoice is addressed to.
(iii) ”Goods” shall mean all goods, materials and services supplied or provided by the Company to the Purchaser.
- These Terms and Conditions and any invoices issued by the Company shall constitute the entire agreement between the Company and the Purchaser, which agreement shall not be varied in any way except in writing executed by both parties.
- Unless otherwise specified by the Company, terms of payment are strictly thirty (30) days from the end of month the invoice is issued. After that period, interest at the rate of 2% per annum above the rate imposed by Section 2 of the Penalty Interest Rate Act 1983 (Vic) will be charged monthly on all overdue amounts and will be added to each monthly account after the first account rendered. An account fee of $2.50 shall be charged to each monthly account, and a $10.00 fee per month for any account trading outside these terms and conditions. Any costs, charges or expenses incurred by the Company in recovering or attempting to recover any amounts from the Purchaser or in enforcing its rights under the Terms and Conditions shall be payable to the Company by the Purchaser as a liquidated amount.
- Time for the supply of goods is not of the essence of this agreement and is hereby expressively excluded herefrom unless it is specifically stated to be so on the invoices. Any obligation of the Company created by these terms ad enforceable upon the Company to supply goods and/or provide services shall be construed as to be upon the express condition the Company shall not be liable for delay the supply of or non-supply of goods and/or provision of services resulting from circumstances beyond its control.
- The Purchaser hereby agrees that the Company neither expressly nor impliedly or by any other means whatsoever guarantees or warrants the goods supplied and/or the services provided as being of merchantable or any other quality, Any term, condition or warranty implied under any statute is hereby expressly excluded to the extent that it may, by law, it may be required to be excluded.
- The Company will not be obliged to consider any claim by the Purchaser as to the quality of goods supplied and/or services provided by the Company unless such claim is made in writing to the Company within seven days (7) of the delivery of the goods or provision of the services to the Purchaser.
- The Purchaser acknowledges that risk in the goods but not title, passes to the Purchaser once the goods have been delivered by the Company to the Purchaser.
- The Purchaser acknowledges and agrees that irrespective of its signature or a signature of any person appearing on an invoice the mere acceptance of the said goods supplied by the Purchaser shall constitute the Purchaser’s submission to there terms and conditions of trading.
- An order placed by the Purchaser may only be cancelled in writing notified to the Company and in the event of such cancellation, the Purchaser shall be liable for payment of all reasonable costs and expenses incurred by the Company up to the date upon which the cancellation is brought to the Company’s notice and it is agreed by the Purchaser that the Company’s assessment of such costs and expenses shall be accepted by the Purchase as final and binding. In the event of a cancellation, the Company shall be entitled to retain any deposit money’s paid by the Purchaser and apply those monies in payment of costs and expenses incurred by the Company as a consequence of the cancellation of the order.
- Any credit facility granted to the Purchaser by the Company may be withdrawn or varied at any tie at the discretion of the Company and without prior notice to the Purchaser.
- The Purchaser hereby charges (and if more than one Purchaser then each of them jointly and severally charge) with payment of any monies owing at any time to the Company, all present and after acquired property of the Purchaser and all estates and interests in freehold and leasehold land which the Purchaser/s has or may acquire and hereby further covenants and agrees to execute such further documents or instruments as may be necessary to enable the registration thereof at the Land Titles Office.
- If any term or condition herein is found to be void or unenforceable at law, such invalidity or enforceability shall not affect the remaining terms and conditions herein and such void or unenforceable term or condition may be severed in whole or in part without affecting the validity and enforceability of any other terms and conditions.
- Any contract between the parties hereto shall be construed in accordance with and governed by the law of the State of Victoria and any proceedings arising out of or in consequence of any dispute between the parties hereto shall be conducted in the State of Victoria.
- The obligations of the Company under these terms and conditions of trading shall not exceed in nature, extent or otherwise, the obligations which the Company may impose upon the Purchaser pursuant to any Act of Parliament, State or Federal.
- Each transaction for the sale of goods and each delivery of goods by the Company to the Purchaser shall be deemed to be subject to the following conditions:
(a) (i) words and phrases used in this clause which are defined in the Personal Property Securities Act 2009 (”PPSA”) have the same meaning in the Clause;
(ii) ”collateral” for the purposes of the PPSA means the goods which the Company may provide to the Purchaser from time to time which are the subject of this clause;
(iii) the contents of this clause is a security agreement for the purposed of the PPSA;
(iv) ”dealing” means and includes the Purchaser using the goods in some manufacturing or construction process of its own or, of a third party;
(v) ”goods” means any goods supplied by the Company to the Purchaser from time to time;
(vi) ”resale” means and includes any form of sale, hire, loan or in any way parting with possession of the goods.
(b) The Purchaser acknowledges that risk in the goods passes to the Purchaser oncer the goods have been delivered by the Company to the Purchaser.
(c) No title or ownership of the goods passes to the Purchaser until payment in full of all monies owing by the Purchaser to the Company in respect of goods delivered, is received by the Company from the Purchaser and the Purchaser shall:
(i) Store goods which have not been paid for, separately, safe from damage and readily identifiable as goods of the Company and as agent, trustee and bailee of the Company;
(ii) The Purchaser may resell the goods but only as agent of the Company. Any right to bind the Company to any liability or third-party agreement or otherwise is expressly negatived. Any resale of the goods by the Purchaser is to be at arm’s length and on market terms and pending resale or dealing in the goods, the goods are to be kept separate from the Purchase’s own goods and insured by the Purchaser with a reputable insurer noting the interest of the Company;
(iii) The Purchaser will receive all proceeds of resale of or any dealing with the goods, whether the proceeds are tangible or intangible, whether direct or indirect, in trust for the Company and will keep such proceeds in a separate account until the liability of the Purchaser to the Company shall have been discharged. Such proceeds of resale shall be held in trust for the Company and shall be deemed to be equal in dollar terms to the amount owing by the Purchaser to the Company in respect of the goods at the time of receipt of such proceeds;
(iv) The company is to have the power to appropriate payments to such goods and accounts as it thinks fit notwithstanding any appropriation by the Purchaser to the contrary;
(v) If the purchaser does not pay for any goods on the due date specified by the Company, the Company is irrevocably authorised by the Purchaser to enter the Purchaser’s premises (or any premises under the control of the Purchaser or as agent of the Purchaser if the goods are stored at such premises), and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Purchaser (or its agent) whatsoever;
(vi) Should the Company seek to recover the goods, the Purchaser grants access to the premises where the goods are stored and indemnifies the Company in relation to any damage caused to those premises;
(vii) For the purpose of giving effect to and perfecting any matters contained in this clause, the Purchaser irrevocably appoints the Company as its attorney; and
(viii) The parties agree that the provisions of this clause apply notwithstanding any agreement between the parties under which the Company gives the Purchaser credit.
(d) It is expressly agreed between the Company and the Purchaser that:
(i) Neither the goods or proceeds of sale or dealing therefrom shall be available for general distribution among creditors of the Purchaser in the case of corporate administration, liquidation or bankruptcy;
(ii) Neither the goods or proceeds of sale or dealing therefrom shall be available for distribution among secured creditors of the Purchaser holding a fixed or floating security over the Purchaser; and
(iii) The loss of identify of goods subject to resale or dealing does not prevent the proceeds of resale or dealing being held on trust by the Purchaser for the Company.
(e) The content of this clause and the conditions contained in it constitute a security agreement for the purposes of the PPSA in respect of which, the Purchaser agrees that the collateral is not to be used predominantly for personal, domestic or household purposes, The Purchaser unconditionally and irrevocably contracts out the following provisions of the PPSA:
- Section 95 requiring notice to be given of removal of an accession;
- Section 96 when a person with an interest in the whole may retain an accession;
- Section 121 (4) requiring notice to grantor in relation to enforcement of liquid assets;
- Section 130 requiring a secured party to give notice to a grantor in respect of disposal of collateral;
- Section 132 (3) (d) requiring the delivery of a statement of account to a grantor after disposal;
- Section 132 (4) requiring delivery of a statement of account if no disposal;
- Section 135 requiring delivery by a secured party to a grantor of notice of retention;
- Section 142 giving the right by a grantor to redeem collateral; and
- Section 143 giving the right of a grantor to seek reinstatement of a security agreement.
(f) The Purchaser consents to the Company, at the Purchaser’s cost and expense, registering any security interest contemplated or constituted by this clause or these conditions and agrees to sign all documents requested by the Company and to do all such things as the Company requests in order to register the Company’s security interest pursuant to the PPSA including the registration of a Financing Statement, a Financing Change Statement in respect of a security interest and any other document or notice required for the purposes of the PPSA. The Purchaser unconditionally and irrevocably waives the right to receive a Verification Statement in relation to the registration of any security interest by the Company in respect of the collateral.
(g) The Purchaser undertakes that it will not:
(i) Do anything which would prejudice or interfere with the Company’s right to registration of its security interest pursuant to the provisions of the PPSA;
(ii) Register or seek to register a Financing Change Statement in respect of the collateral without the Company’s prior written consent; and
(iii) Permit any further encumbrance to subsist in respect of the collateral in favour of any third party without prior the written consent of the Company.
(h) The Company’s rights pursuant to this clause are addition to and not in substitution of any other rights the Company has against the Purchaser.
- Any dispute between the Purchaser and the Company in relation to this Agreement, the subject matter thereof or the goods shall not be justifiable by way of litigation or alternate dispute resolution until such time as the Purchaser has paid to a trust account maintained by the Company’s solicitors, all monies owing by the Purchaser to the Company or claimed by the Company as being owing by the Purchaser (“the escrow payment”); and the Company’s solicitors have certified that the escrow payment has been received by way of cleared funds.
- In relation to the escrow payment referred to in clause 17 hereof, the Company’s solicitors are authorised by both the Company and the Purchaser to place the escrow payment in an interest bearing trust account in the joint names of the parties without further authority or direction from either of them. Upon determination of any dispute (by litigation or alternate dispute resolution mechanism), the Company’s solicitors are authorised to disburse the escrow payment and interest earned thereon in accordance with the outcome of the litigation or alternate dispute resolution mechanism or otherwise in accordance with the written direction of both parties to this Agreement.
- The provisions of clause 17 hereof may be pleaded by the Company as a bar to any proceeding instituted by way of litigation or the commencement of any alternate dispute resolution method by the Purchaser.
- For the purposes of these Terms and Conditions, where any dispute arises as to the indebtedness of the Purchaser to the Company or of the quantity or quality of goods and or services supplied to the Purchaser by the Company, the certificate of the Company’s director or office shall be conclusive evidence of the matters therein stated.