TERMS AND CONDITIONS
1. Changes in Ownership
In the event that the Customer, being an individual or partnership, incorporates his/her business and the Supplier continues to use the existing account, or the account is used by a company of which he/she is a director, he/she hereby agrees to personally guarantees all due debts on the terms of the Deed of Guarantee set out in this Agreement. If ownership of the Customer’s business changes, the Customer will remain liable for all debt incurred on this account until such time as the Supplier is notified in writing of such change
You hereby charge as beneficial owner and as trustee of any trust in favour of the supplier;
(a) All real property in which you now or in the future have any title or interest in as security for any and all monies owing to the Supplier and you hereby consent to the Supplier lodging a consent caveat and/or mortgage which notes the Supplier’s interest in that real property. When requested by the Supplier, you irrevocably agree to grant the Supplier a consent caveat and/or mortgage in registrable form and deliver to the Supplier the Certificate of Title (if any) and do all things that the Supplier reasonably requests to have the consent caveat and/or mortgage registered on the title to the property.
(b) All your personal property including without limitation all the stock, motor vehicles, plant & equipment and debtors you now or in the future own as security for any and all monies owing to the Supplier and you hereby consent to the Supplier registering with any competent authority a security interest in that personal property.
3. Delivery and Returns
(a) The Customer is solely responsible for acceptance of the orders and shall raise no claims for loss or damage to orders where same are, by arrangement, delivered to and left at unattended sites.
(b) The Customer shall indemnify HPP and its agents against any claim for damages resulting from the entry of carriers onto the delivery site.
(c) Goods may be exchanged within fourteen (14) days of delivery and must be accompanied by the corresponding Invoice/Delivery Docket, Monies will not be refunded and an administration charge of 15% will apply. Nonstandard or special size goods cannot be exchanged.
4. Exercise of Legal Rights
The failure, delay, relaxation or indulgence on the part of the Supplier in exercising any power or right conferred upon the Supplier by these Terms and Conditions of Sale does not operate as a waiver of that power or right, nor does any single exercise of any power or right preclude any other or further exercise of it or the exercise of any other power or right under these Terms and Conditions of Sale.
5. Governing Law
These Terms and Conditions of Sale shall be construed in accordance with the law in force in Queensland, Australia and the parties agree to submit to the non-exclusive jurisdiction of the Courts of that State. It shall be competent for the Supplier to issue proceedings in Gold Coast, Queensland in a Court of competent jurisdiction.
(a) In these Terms and Conditions of Sale
“Supplier” means HPP Pty Ltd (ABN 97 151 762 659) trading as HPP GROUP;
(b) “you” or “customer” means the Customer and/or Guarantor/s stated in the Application for Commercial Credit Account and any other person offering to contract with the Supplier on these Terms and Conditions of Sale or, where such person is acting in the course of employment, such person’s employer;
(c) “Goods” means goods supplied by the Supplier to the Customer from time to time;
(d) “Agreement” means the agreement set out in the entire Application for Commercial Credit Account of the parties as to the supply of Goods and/or services by the Supplier to the Customer (and incorporates those terms and conditions as amended from time to time).
(e) “PPS Act” means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as varied from time to time.
(f) “PPSR” means to the Personal Property Securities Register established under the PPS Act.
7. Limitation of Liability
The Customer acknowledges that no warranty; condition, description or representation in relation to Goods supplied is given by the Supplier, expressly or implied. All warranties, terms and conditions in relation to the state, quality of fitness of the Goods and of every other kind whether implied by use, statute or otherwise are hereby excluded. The Supplier shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply of the Goods arising out of the Supplier’s negligence or in any way whatsoever. The Supplier’s liability for a breach of a condition or warranty implied by Div. 2 of Pt V of the Trade Practices Act 1974 (other than s.69) is hereby limited to: –
(a) In the case of Goods, any one or more of the following-
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) the payment of the cost of having the Goods repaired; or
(b) In the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again
The Supplier’s liability under s.74H of the Trade Practices Act 1974 is expressly limited to a liability to pay the Customer an amount equal to: –
(a) the cost of replacing the Goods; or
(b) the cost of obtaining equivalent Goods; or
(c) the cost of having the Goods repaired,
whichever is the lowest amount.
8. Ownership of Goods
(a) Property in any Goods delivered to the Customer will not pass to the Customer until the later of:
(i) payment in full for the Goods;
(ii) payment in full of all monies owing or unpaid by you to the Supplier including monies in respect of Goods previously or subsequently supplied to you by the Supplier.
(b) The Customer shall store the Goods in such a manner as to show clearly that they are the property of the Supplier and you shall keep records of all use and sales of such Goods.
(c) The Customer shall keep the Goods free from and will indemnify the Supplier against any charge, lien or other claim thereon.
(d) The Customer has no title or right to charge or encumber the Goods before payment to the Supplier under this clause.
(e) If the Customer fails to pay the purchase price or any other debts to the Supplier when due, or commits any act of bankruptcy, the Supplier may without notice and without prejudice to any of its rights and remedies recover and/or resell the Goods or any of them and may by its servants or agents enter upon the Customer’s premises for that purpose.
(f) Goods delivered to the Customer shall be at the Customer’s risk on delivery to you.
Power of Attorney
(a) You irrevocably appoint the Supplier and its officers severally as your Attorney to:
(i) do whatever is necessary to complete the Agreement on your behalf and to exercise all or any of your rights, powers or obligations relating to the Agreement (including, without limitation, the granting of a consent caveat and/or mortgage and/or security interest in accordance with Clause 2) of the Agreement. A statutory declaration of the Supplier or an Officer of the Supplier that the rights of the Supplier under clause 9(a)(i) are exercisable will be treated as conclusive evidence of its contents in favour of any person who is not a party to the Agreement.
(ii) generally, do execute and perform any act, deed, matter or thing in relation to the Agreement as fully and effectively as you could execute or perform it:
(b) You must ratify and confirm anything lawfully done or cause to be done in accordance with this clause,
(c) In consideration of the Supplier entering into the Agreement and supplying you with Goods and/or services, you must not revoke this Power of Attorney
Words in italic shall have the meaning and definitions set out in the PPS Act.
The Customer acknowledges that by virtue of these Terms and Conditions of Sale the Supplier has a security interest in the Goods and their proceeds for the purposes of the PPS Act.
The Customer acknowledges that the Supplier may do anything it considers necessary, including but not limited to registering on the PPSR any security interest in the Goods which the Supplier has and including registration as a purchase money security interest (PMSI) in order to perfect the Supplier’s security interest as a first priority interest under the PPS Act. The Customer agrees to do all things including signing any document which the Supplier reasonably requires to assist the Supplier to undertake the matters set out above.
The Customer waives pursuant to section 157(3)(b) of the PPS Act the right to receive notice of a financing statement, financing change statement or a verification statement in relation to any registration on the PPSR.
The Customer and the Supplier agree that, pursuant to section 115 of the PPS Act that the following provisions in the PPS Act are contracted out of insofar as they require the Supplier to give any notice of statement or allow any period of time or grant any opportunity to remedy to the Customer:
(a) section 95 (removal of accession);
(b) section 96 (retention of accession);
(c) section 125 (disposal or retention of collateral);
(d) section 129 (disposal by purchase);
(e) section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal;
(f) subsection 132(4) (statement of account if no disposal);
(g) section 135 (notice of retention);
(h) section 142 (redemption of collateral);
(i) section 143 (reinstatement of security agreement).
Solely to preserve their confidentiality, to the extent allowed under section 275 of the PPS Act, the Customer and Supplier agree that neither will disclose information if requested by a third party under section 175(1).
The Customer agrees that any rights of the Supplier under this document are in addition to and not in substitution for its rights under the PPS Act.
The Customer must not without the Supplier’s consent specify an order of application of payments made to the Supplier different to that set out in section 14 of the PPS Act or different to any other order specified by the Supplier at any time.
The Customer undertakes to give the Supplier not less than 14 days prior notice of any proposed change in the Customer’s name or any other change in the Customer’s details (including, but not limited to, changes in its address, phone or facsimile number and trading name).
(a) Unless otherwise agreed in writing the price of the Goods shall be that price charged by the Supplier at the date of order, plus any transportation, freight, postage, packaging, handling, insurance and goods and services tax (“GST”) and any other expense plus any amount which the Supplier is required to pay on account of sales or other taxes assessed in relation to the Goods. GST where applicable, will be charged at the appropriate rate ruling at the date of invoice
(b) Notwithstanding paragraph (a), the Customer may on-sell the Goods on commercial terms in the ordinary course of its business before the purchase price for the Goods and other debts to the Supplier have been paid to the Supplier, but in this case the Customer shall hold the proceeds of such sale on trust for the Supplier in a separate account and account to the Supplier for such proceeds on demand.
(c) The Supplier will be given full ownership of any new goods or objects formed if you transform our Goods into other products or affix those Goods to other objects.
(d) The Customer is not entitled to return the Goods and refuse or delay payment on the grounds that the property in the Goods has not yet passed.
Where these Terms and Conditions of Sale are qualified by any provision of law which applies and which cannot be excluded or where any such provision in these Terms and Conditions of Sale is deemed to be unlawful or unenforceable, such provision shall be severed from these Terms and Conditions of Sale and all other provisions hereof shall remain in force to the fullest extent permitted by law.
13. Terms of Payment
(a) Payment for material, Goods and/or services pursuant to this Agreement including GST is as set out in HPP GROUP’s Letter of Approval.
(b) After the due date of payment, the Supplier may charge interest on outstanding amounts payable, calculated on a daily balance, at the reference rate of our nominated Banking Corporation + 1%. Service to the account may also be suspended pending full payment.
(c) The Customer agrees to pay and reimburse the Supplier on demand for all legal costs, stamp duty or other costs or expenses suffered or incurred by the Supplier in respect of the preparation of any agreements, personal guarantees, securities or other documentation required by the Supplier to document or secure the provision of credit to the Customer together with all collection and enforcement costs and expenses which the Supplier may suffer or incur in connection with the sale of Goods or supply of services or provision of credit to the Customer (without limitation) legal costs on a full Indemnity basis.
(d) HPP reserves the right to charge a fee of $10.00 per day per order if not taken or delivered within 5 working days of the original delivery date.
(a) The Supplier may assign its rights under the Agreement
(b) The Supplier may change the terms of the Agreement at any time upon giving the Customer written notice of such change
(c) If any term of the Agreement is unlawful or unenforceable, it shall be severed and all other terms and conditions shall remain in force.
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