AYVA PACKAGING PTY LTD
TERMS AND CONDITIONS OF SALE
1. Definitions
In these terms and conditions:
“Conditions” means the terms of these credit account terms and conditions;
“Customer” means an individual, partnership or corporation seeking to acquire Goods or Services from the Supplier and where applicable includes the applicant in the Commercial Credit Application and, if the Customer consists of more than one person, each of them jointly and severally;
“Goods” means all goods and or materials supplied by the Supplier to the Customer;
“GST” means GST within the meaning of A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended;
“Insolvency Event” means any matter referred to in clause 4.6(a) or (b) of these Conditions;
“Other Property” means all present and after-acquired property of the Customer (except the Goods) whether acquired alone or jointly as a tenant in common or as a joint tenant;
“PPSA” means the Personal Property Securities Act 2009 (Cth) as amended;
“Real Property” means all real property interest held by the Customer now and in the future;
“Security Agreement” and “Security Interest” have the meaning ascribed to them in the PPSA;
“Services” means any and all services supplied by the Supplier to the Customer; and
“Supplier” means Ayva Packaging Pty Ltd (ACN 138 062 987).
2. Application of the Conditions
2.1
Subject to clause 2.4, or unless otherwise agreed in writing, these Conditions will apply exclusively to every contract for the sale of Goods and or the supply of Services by the Supplier to the Customer and cannot be varied or replaced by any other conditions without the prior written consent of the Supplier.
2.2
Any written quotation provided by the Supplier to the Customer concerning the supply of Goods and or Services is valid for 30 days, unless otherwise stated in the quotation, and is an invitation only to the Customer to place an order based upon that quotation.
2.3
The Supplier will not be deemed to have accepted an order or an offer by the Customer unless it has communicated acceptance to the Customer in writing or has delivered the Goods or Services stated in the order.
2.4
The Supplier may vary these Conditions provided it first gives 7 days written notice to the Customer. Any order placed, or Goods or Services supplied at the request of the Customer, after such 7 day period, will be deemed to be the Customer’s acceptance of the varied Conditions.
2.5
The minimum order value is $100.00 or as otherwise notified by the Supplier to the Customer from time to time.
2.6
The Supplier may terminate this agreement on 7 days written notice. Any termination is without prejudice to the rights of the Supplier accrued prior to such termination including the right to be paid or to recover the Goods.
2.7
The Supplier may terminate this agreement without notice if an Insolvency Event occurs in relation to the Customer.
2.7
The Customer and Supplier agree to keep confidential the terms of these Conditions, including the price of the Goods and Services, except as required by law.
3. Payment
3.1
Payment for Goods and or Services must be made, without deduction or setoff, within 30 days following the end of the onth during which the invoice is dated unless otherwise agreed in writing.
3.3
In the event that there are insufficient funds to meet any cheque drawn or credit facility charged by the Customer in favour of the Supplier, an administration fee of $100.00 will be charged on each and every representation and or dishonour.
3.2
The Supplier may withdraw any credit terms or require the provision of security at any time in its absolute discretion and without notice to the Customer and may apply any payment by the Customer in any manner as the Supplier sees fit.
4. Payment Default and Security
4.1
If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any accrued rights or other remedy available to it:-
(a) charge the Customer interest on any sum due at 7% (seven percent) above the prevailing rate pursuant to the St. George Bank “Commercial Overdraft” facility, or if this product is replaced such other product substantially similar to it, for the period from the due date until the date of payment in full;
(b) charge the Customer for all expenses and costs (including legal costs on a solicitor/own client basis) incurred by it resulting from the default and in taking whatever action it deems appropriate to recover any sum due including enforcing the charge in clause 4.2;
(c) cease or suspend for such period as the Supplier thinks fit, supply of any further Goods, Services or credit to the Customer; and
(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Supplier.
4.2
As security for any amounts due to the Supplier from time to time, the Customer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real Property to the Supplier.
4.3
Without limiting the generality of the charge in clause 4.2, the Customer agrees on request by the Supplier, to execute any documents and do all things reasonably required by the Supplier to perfect the charge given in clause 4.2 including registering a mortgage security over any Real Property. The Customer appoints the Supplier to be the Customer’s lawful attorney for the purposes of executing and registering such documents and taking all such steps in that regard. The Customer indemnifies the Supplier on an indemnity basis against all costs and expenses incurred by the Supplier in connection with the preparation and registration of any such steps needed to perfect the security or prepare to register the mortgage documents.
4.4
The Customer consents unconditionally to the Supplier lodging a caveat or caveats noting its interest in any Real Property.
4.5
A statement in writing by an authorised officer of the Supplier setting out the moneys due or owing to the Supplier at the date of the statement shall be sufficient evidence of the amount so due or owing until the contrary is proven.
4.6
Clause 4.1 may also be relied upon, at the option of the Supplier:
(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of any creditors; or
(b) where the Customer is a corporation and it enters into any scheme of arrangement or any assignment or composition with or for the benefit of any creditors or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
4.7
In the event of a dispute, the Customer will not be entitled to withhold payment of any undisputed amount due to the Supplier.
5. Retention of title
5.1
The Customer agrees:
(a) title and property in all Goods remain vested in the Supplier and do not pass to the Customer;
(b) the Customer must hold the Goods as fiduciary bailee and agent for the Supplier;
(c) the Customer must keep the Goods separate from its own goods and maintain the labelling and packaging of the Supplier;
(d) the Customer is required to hold the proceeds of any sale of the Goods on trust for the Supplier in a separate account;
(e) the Customer must deliver up all Goods to the Supplier immediately upon service of a written demand; and
(f) the Supplier may without notice, enter any premises where it suspects the Goods may be and remove them, notwithstanding that they may have been attached to other Goods not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action, until full payment in cleared funds is received by the Supplier for all Goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer.
5.2
The Customer may resell the Goods in the ordinary course of its business (but may not otherwise sell or encumber the goods) and if it does so shall receive the proceeds of resale as trustee of the Supplier, to be held on trust for the Supplier. The Supplier shall be entitled to trace the proceeds of resale.
5.3
The reservation of title and ownership is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
5.4
To assure performance of its obligations under these Conditions, the Customer hereby grants the Supplier an irrevocable power of attorney to do anything the Supplier considers should be done by the Customer pursuant to these Conditions. The Supplier may recover from the Customer the cost of doing anything under this clause 5, including registration fees and legal costs (on a solicitor/own client basis).
6. Security Interest
6.1
The Customer agrees:
(a) that these Conditions constitute a Security Agreement for the purposes of the PPSA;
(b) that these Conditions create a Security Interest in all Goods (and the proceeds of the Goods) in favour of the Supplier to secure the purchase price for the Goods;
(c) that the following sections of the PPSA do not apply: 95, 118, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, and, to the extent section 115(7) applies, each section of Part 4.3 of the PPSA is excluded unless the Supplier elects in writing to retain Part 4.3 (which the Supplier may elect to do either in whole or in part); and
(d) to waive its right to receive notice of a verification statement in relation to registration of a Security Interest.
6.2
The Customer:
(a) further agrees that these Conditions also create a Security Interest in all of the Customer’s Other Property, although such Security Interest is not intended to prevent the Customer from transferring such Other Property in the ordinary course of the Customer’s business; and
(b) separately charges all Real Property owned now and in the future by the Customer whether owned alone or jointly as a tenant in common or as a joint tenant, in favour of the Supplier to secure payment and performance of all the Customer’s obligations under these Conditions.
6.3
The Customer must immediately, if requested by the Supplier, sign any documents, provide all necessary information and do anything else required by the Supplier to ensure that the Supplier’s Security Interest is a perfected security interest.
6.4.
The Customer will not enter into any other Security Agreement that permits any other person to have or to register any Security Interest in respect of the Goods or any proceeds from the sale of the Goods until the Supplier has perfected its Security Interest.
7. GST and Duties
7.1
Prices for the supply of Goods and or Services exclude sales tax, consumption or goods and services tax, and any other taxes, duties or imposts imposed on or in relation to the Goods and or Services.
7.2
If prices for Goods and or Services provided by the Supplier do not expressly indicate that the prices include GST then the Customer will pay the Supplier the price for the Goods and or Services plus GST.
8. Delivery of the Goods
8.1
Any period or date for delivery of Goods stated by the Supplier is intended as an estimate only and is not a contractual commitment. The Supplier may deliver the Customer’s orders in part or in whole
8.2
Unless otherwise stated by the Supplier, all costs of freight, insurance and other charges associated with the delivery of the Goods to the agreed delivery address shall be borne by the Customer.
8.3
If the Customer is unable or fails to accept delivery of the Goods, the Customer will be liable for all costs incurred by the Supplier due to storage, detention, double cartage, travel expenses or similar causes.
9. Risk and Insurance
All risk in the Goods and all insurance responsibility for theft, damage or otherwise in respect of the Goods will pass to the Customer immediately upon delivery of the Goods to the Customer.
10. Liability
10.1
Except as specifically set out herein, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods and/or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
10.2
The Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused arising from the supply of the Goods and/or Services, including but not limited to loss of turnover, profits, business or goodwill.
10.3
The Supplier will not be liable for any loss, damage or claim suffered by the Customer where the Supplier has failed to meet any delivery date or cancels or suspends the supply of Goods or for any Goods that display a “use-by” date that are sold or distributed by the Customer after that date.
10.4
Nothing in these Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods and/or Services which cannot be excluded, restricted or modified. If any of these Conditions is inconsistent with State or Federal legislation, such Conditions must be read down only to the extent necessary to comply with such legislation and will otherwise apply to the fullest extent legally possible.
10.5
The Supplier’s total aggregate liability for any loss, damage or claim suffered by the Customer, however arising, shall not exceed the GST exclusive aggregate price paid by the Customer to the Supplier for the specific Goods or Services that gave rise to the loss, damage or claim in question.
10.6
The Customer must take reasonable steps to mitigate any loss, damage or claim it suffers or incurs.
10.7
If the Customer is a “consumer” within the meaning of Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Supplier’s liability for a breach of a condition, warranty or guarantee (whether express or implied) is limited to any one of the following as determined by the Supplier:
(a) the replacement of the Goods or the supply of equivalent Goods; or in the case of Services, supply the Services again or pay the costs of having the Services supplied again; or
(b) the payment of the cost or replacement of the Goods or of acquiring equivalent Goods.
11. Cancellation
No purported cancellation or suspension of an order or contract for Goods and or Services by the Customer will be binding on the Supplier after that order has been accepted by the Supplier.
12. Goods Returned
12.1
All Goods are sold on a non-returnable, non-refundable basis and, subject to clause 12.3, may only be returned if the Goods are damaged by the Supplier upon delivery or are incorrectly supplied by the Supplier.
12.2
Any claim by the Customer that the Goods are damaged or incorrectly supplied must be made in writing to the Supplier within 5 business days of receipt of the Goods by the Customer and the Customer must provide a reasonable opportunity for the Supplier to inspect the Goods. The Supplier’s only liability (if any) is limited to the resupply of the Goods.
12.3 The Supplier may, in its sole and absolute discretion, agree to accept a return of some or all of the Goods but all such Goods returned will be subject to a minimum 25% handling fee.
13. Governing Law
These Conditions are governed by and are to be interpreted according to the laws in force in Victoria and the parties submit to the non-exclusive jurisdiction of the courts operating in New South Wales.
