Terms & Conditions of Trade
With Whitehead Timber Sales Ballarat Pty Ltd (WTS) ABN 14 096 667 702
Definitions
In these Terms:
“ACL” means the Australian Consumer Law Schedule of the Competition and Consumer Act;
“Agreement” means any agreement for the provision of goods by the Supplier to the Customer;
“consumer” is as defined in the ACL and in determining if the Customer is a consumer, the determination is made if the Customer is a consumer under the Agreement;
“Customer” means the person, jointly and severally if more than one, acquiring goods from the Supplier;
“goods” means goods supplied by the Supplier to the Customer;
“GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
“PPSA” means the Personal Property Securities Act 2009 as amended;
“Supplier” means Whitehead Timbers Sales Ballarat Pty Ltd (ABN 14 096 667 702)
“Terms” means these Terms and Conditions of Trade.
Basis of Agreement
Unless otherwise agreed by the Supplier in writing, the Terms apply exclusively to every Agreement and cannot be varied or replaced by any other Terms, including the Customer’s terms and conditions of purchase (if any).
Any quotation provided by the Supplier to the Customer for the proposed supply of goods is:
valid for 30 days;
an invitation to treat only; and
only valid if in writing.
The Terms may include additional terms in the Supplier’s quotation, which are not inconsistent with the Terms.
An Agreement is accepted by the Supplier when the Supplier accepts, in writing or electronic means, an offer from the Customer or provides the Customer with the goods.
The Supplier has absolute discretion to refuse to refuse to accept any offer.
The Customer must provide the Supplier with its specific requirements, if any, in relation to the goods.
The Supplier may vary or amend these Terms by written notice to the Customer at any time. Any variations or amendments will apply to orders placed after the notice date.
The Customer must notify the Supplier in writing and with full details within 7 days of any change in its business structure, including without limitation, the appointment of a director, or the resignation of a director, or the issue of a share in, or the transfer of a share in the business.
Pricing
Ordinarily, prices will be quoted for the supply of goods exclusive of GST and any other taxes or duties imposed on or in relation to the goods. The amount of GST payable by the Customer will be included and identified on the Tax Invoice.
If the Customer requests any variation to the Agreement, the Supplier may increase the price to account for the variation.
Where there is any change in the costs incurred by the Supplier in relation to the goods, the Supplier may vary its price to take account of any such change, by notifying the Customer.
Payment
Unless otherwise agreed in writing:
Subject to 4.1(b), full payment for the goods must be made by the end of the month following the date of purchase of the goods.
The Supplier reserves the right to require payment in full on delivery of the goods.
Payment must be made by cheque, cash or electronic funds transfer to the following account:
Account Name: Whiteheads Timber Sales Pty Ltd
Bank: Westpac
BSB: 035612
Account Number: 960547
Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
Payment terms may be revoked or amended at the Supplier’s sole discretion immediately upon giving the Customer written notice.
The time for payment if of the essence.
Payment Default
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 if its other accrued or contingent rights:
charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4% for the period from the due date until the date of payment in full.
charge the Customer for, and the Customer must indemnify the Supplier from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any goods;
cease or suspend supply of any further goods to the Customer;
by written notice to the Customer, terminate any uncompleted contract with the Customer.
Clauses 5.1(c) and (d) may also be relied upon, at the Supplier’s option:
where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or compositions with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets, 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.
The Customer hereby charges all its right, title and interest in the property or properties referred to in Part 1 of the Application for Credit and also any property or properties that it owns or may acquire in the future solely or jointly or have or become to have a beneficial interest in, in favour of the Supplier, with the due and punctual observance and performance of all obligations of the Customer. The Customer indemnifies the Supplier against all expenses and legal costs (on a solicitor/own client basis) for preparing, lodging and removing any caveat.
The customer hereby acknowledges that the Supplier may at its discretion register and lodge a caveat(s) on such property or properties in respect of the interests conferred on it under this clause. Such registration of a caveat by the Supplier over the Customer’s property or properties must not be challenged by the customer in any way whatsoever, and the Customer agrees not to take any steps in filing a “lapsing notice” via the Land Titles Office to have the caveat removed, until such time that the Customer has paid all monies owing by it to the Supplier as claimed from time to time.
Passing of Property
Until the Supplier receives full payment in cleared funds for all goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer;
title and property in all goods remain vested in the Supplier and do not pass to the Customer;
the Customer must hold the goods as fiduciary bailee and agent for the Supplier;
the Customer must keep the goods separate from its goods;
the Customer must hold the proceeds of sale of the goods on trust for the Supplier;
in addition to its rights under PPSA, the Supplier may with reasonable notice, enter any premises where it suspects the goods are 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 licenses 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.
Personal Property Securities Act
Notwithstanding anything to the contrary contained in these Terms, the PPSA applies to these Terms.
For the purpose of the PPSA:
terms used in clause 7 that are defined in the PPSA have the same meaning as in the PPSA;
these Terms are a security agreement and the Supplier has a Purchase Money Security Interest in all present and future goods supplied by the Supplier to the Customer and the proceeds of the goods;
the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
the Customer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by the Supplier on the Personal Property Securities Register.
The security interest arising under this clause 7 attaches to the goods when the goods are collected or dispatched from the Supplier’s premises and not at any later time.
Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures, or other documentation specified under Sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
To the extent permitted by the PPSA, the Customer agrees that;
the provisions of chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on the Supplier will apply only to the extent they are mandatory or the Supplier agrees to their application in writing; and
where the Supplier has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
The customer must immediately upon the Supplier’s request:
do all things and execute all documents necessary to give effect to the security interest created under this Agreement; and
procure from any person considered by the Supplier to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Supplier may at any time require.
The Supplier may, at its discretion, determine not to register or revoke an existing registered Security Interest over the goods.
The Supplier may allocate amounts received from the Customer in any manner the Supplier determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Supplier.
The Supplier may, at its discretion, apply amounts received from the Customer, in the first instance against interest amounts charged by the Supplier, which relate to overdue payments for goods supplied by the Supplier.
Risk and Insurance
The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being delivered to the Customer or being taken by the Customer from the Supplier’s premises.
The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use, installation or possession of any of the goods sold by the Supplier, unless recoverable from the Supplier on the failure of any statutory guarantee under the ACL or any other relevant statutory legislation.
Performance of Agreement
Any period or date for delivery of goods stated by the Supplier is an estimate only and not a contractual commitment.
The Supplier will use its reasonable endeavours to meet any estimated dates for delivery of the goods but will not be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
Delivery
Subject to clause 10.6, the Supplier will arrange for the delivery of the goods to the Customer.
Subject to clause 10.6, the Supplier will, unless otherwise agreed with the Customer, charge associated freight and delivery costs along with the cost of the goods from point of dispatch to the point of delivery of the Customer.
The Customer is responsible for all costs associated with delivery once the goods have reached the Customer’s point of delivery.
The Supplier may make part delivery of goods and the Supplier may invoice the Customer for the goods provided.
The Customer indemnifies the Supplier against any loss or damage suffered by the Supplier, its sub-contractors or employees as a result of delivery, except where the Customer is a consumer and the Supplier has not used due care and skill.
If delivery is attempted and is unable to be completed the Customer is deemed to have taken delivery of the goods. The Customer is liable for storage charges payable monthly on demand.
If agreed that the customer will collect the goods:
the Customer must collect the goods within 7 days of being advised they are ready;
if the Customer does not collect the goods within this time, the Customer is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
Liability
Except as the Terms specifically state, or as contained in any express warranty provided in relation to the goods or services, the Agreement does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or any contractual remedy for their failure.
If the Customer is a consumer nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against the Supplier for failure of a statutory guarantee under the ACL.
If the Customer on-supplies the goods to consumer:
if the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of the Supplier’s liability to the Customer;
otherwise, payment of any amount required under section 274 of the ACL is the absolute limit of the Supplier’s liability to the Customer;
howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods by the customer or any third party.
If clause 11.2 or 11.3 do not apply, then other than as stated in the Terms or any written warranty statement the Supplier is not liable to the Customer in any way arising under or in connection with the sale, use of, storage or any other dealings with the goods by the Customer or any third party.
The Supplier is not liable for any indirect or consequential losses or expenses suffered by the customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
The Customer acknowledges that:
it has not relied on any service involving skill and judgement, or on any advice, recommendation, information, or assistance provided by the Supplier in relation to the goods or their use or application.
it has not made known, either expressly or by implication, to the Supplier any purpose for which it requires the goods and it has the sole responsibility of satisfying itself that the goods are suitable for the use by the Customer.
Nothing in the Terms 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 or supply of services which cannot be excluded, restricted or modified.
Cancellation
If the Supplier is unable to deliver or provide the goods, then it may cancel the Customer’s order (even if it has been accepted) by written notice to the Customer.
No purported cancellation or suspension of an order or any part of it by the Customer is binding on the Supplier once the order has been accepted.
Shortages and Exchanges
Subject to clause 13.2 and 13.4, the Supplier will not be liable for any shortages, damage or non-compliance with the specifications in the Agreement unless the Customer notifies the Supplier with full details and description within 7 days of delivery otherwise the Customer is deemed to have accepted the goods.
When any shortages, claim for damaged goods or non-compliance with the Agreement specifications is accepted by the Supplier, the Supplier may, at its option, replace the goods, or refund the price of the goods.
Subject to clause 13.4, the Supplier will not under any circumstances accept goods for return that:
have been specifically produced, imported or acquired to fulfill the Agreement;
are discontinued goods or no longer stocked by the supplier;
have been altered in any way;
have been used or cut;
have not been handled or stored in accordance with the Supplier’s instructions or industry good practice; or
are not of their original condition.
If the Customer is a consumer, nothing in this clause 13 limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
Force Majeure
The Supplier is not liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, the Supplier may suspend or terminate the Agreement by written notice to the Customer.
Miscellaneous
The Law of South Australia from time to time governs the Terms. The parties agree to the non-exclusive jurisdiction of the courts of South Australia, the Federal Court of Australia, and of courts entitled to hear appeals from those courts.
The Supplier’s failure to enforce any of these Terms shall not be construed as a waiver of any of the Supplier’s rights.
If a clause in unenforceable it must be read down to be enforceable or, if it cannot be read down, the term must be severed from the Terms, without affecting the enforceability of the remaining Terms.
A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by prepaid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.
DEED OF GUARANTEE AND INDEMNITY
With Whitehead Timber Sales Ballarat Pty Ltd (WTS) ABN 14 096 667 702
Customer (“Customer”) or
provide credit to the Customer; or
grant an indulgence outside Whiteheads agreed credit terms’
The Guarantor hereby:
Agrees to guarantee to Whiteheads the due and punctual payment of all money presently owing or any money that may be owing in the future by the Customer, in respect of the cost of goods supplied by Whiteheads to the Customer and any other sums payable by the Customer to Whiteheads pursuant to Whiteheads Terms and Conditions of Trade (hereinafter collectively called “guaranteed money”).
Agrees as a separate severable and additional covenant and obligation to indemnify and keep indemnified Whiteheads against from and against all losses, costs, charges and expenses whatsoever that Whiteheads may suffer or incur in relation to the supply of goods to the Customer and further agrees that each of the provisions hereinafter contained that applies or is capable of application to the Deed when its is construed as an indemnity will apply to the indemnity hereby given by the Guarantor.
Covenants, acknowledges and agree as follows:
The Guarantee hereby given is a continuing guarantee, the indemnity hereby given is a continuing indemnity and neither this Deed nor the said guarantee nor the said indemnity will be discharged in any way or be considered or be deemed to be discharged in any way by any payment to Whiteheads other than the payment to and acceptance by Whiteheads of the whole of the guaranteed money.
Notwithstanding that as between the Guarantor and the Customer the position of the Guarantor is that of surety only nevertheless as between the Guarantor and Whiteheads, the Guarantor is liable hereunder as a principal and as a primary debtor for the payment of the guaranteed money.
This Deed is valid and enforceable against the Guarantor and the liability hereunder of the Guarantor continues and may be enforced by Whiteheads notwithstanding:
that no steps or proceedings have been taken against the Customer;
(ii) any indulgence or extension of time granted by Whiteheads to the Customer;
(iii) the death or bankruptcy or winding up of the Customer;
(iv) that payment of the guaranteed money by the customer cannot be legally enforced against the Customer.
The Guarantor will not compete with Whiteheads for any dividend or distribution in the event of the Customer being declared bankrupt, going into liquidation or being wound up or entering into any deed or scheme of arrangement or assignment or composition in respect of its affairs or its assets and liabilities.
The Guarantor hereby acknowledges having given its consent to the Whiteheads to obtain from a credit reporting agency a consumer credit report containing information about it for the purpose of Whiteheads assessing whether to accept the Guarantor as a guarantor for credit that may be applied for by the Customer.
The term “Whiteheads” includes its successors and assigns and the terms “Customer” and “Guarantor” include their respective executors, administrators and successors.
In this Deed the singular includes the plural and if there is more than one Guarantor to this Guarantee their obligations are joint and several.
PRIVACY ACT 1988
CUSTOMER AUTHORITY AND ACKNOWLEDGEMENT
With Whitehead Timber Sales Ballarat Pty Ltd (WTS) ABN 14 096 667 702
Credit information that may be provided to a credit reporting agency
Whiteheads may give information about me/us to a credit reporting agency before, during or after the provision of credit to me/us for the following purposes:
To obtain a consumer credit report about me/us, and/or
To allow the credit reporting agency to create or maintain a credit information file containing information about me/us.
This information is limited to:
Identity particulars – name, sex, address and the two previous addresses, date of birth, name of employer and drivers license number;
My/our application for credit or commercial credit – the fact that I/we have applied for credit and the amount;
The fact that Whiteheads is a current credit provider to me/us
Loan repayments which are overdue by over 60 days, and for which debt collection has started;
Advice that my/our loan repayments are no longer overdue in respect of any default that has been listed;
Information that, in the opinion of Whiteheads I/we have committed a serious credit infringement, that is, acted fraudulently or shown an intention not to comply with my/our credit obligations;
Dishonoured cheques – cheques drawn by me/us for $100 or more which have been dishonoured more than once
Assessment of Commercial Credit Application
I/we agree that Whiteheads may obtain a consumer credit report containing information about me/us from a credit reporting agency for the purpose of assessing my/our application for commercial credit.
Disclosure to guarantor
I/we agree that Whiteheads may give to a person who is currently a guarantor, or whom I/we have indicated is considered becoming a guarantor, a credit report containing information about me/us for the purpose of the guarantor deciding whether to act as guarantor, or Whiteheads keeping an existing guarantor informed about its guarantee.
I/we understand that the information disclosed can include a credit report and any other information about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to disclose under the Privacy Act including a credit report.
Overdue Payments
I/we agree that Whiteheads may obtain a consumer credit report about me/us from a credit reporting agency for the purpose of collecting overdue payments relating to commercial credit owed by me/us.
Exchange of creditworthiness information
I/we agree that Whiteheads may exchange information about me/us to my/our credit providers including those named in a consumer credit report issued by a credit reporting agency:
To assess an application by me/us for credit
To notify other credit providers of a default by me/us
To exchange information with other credit providers as to the status of my/our credit facility with Whiteheads where I/we are in default with other credit providers
To assess my/our credit worthiness.
I/we understand the information exchanged can include anything about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act.
Privacy Amendment (Private Sector) Act 2000
I/we understand that under the requirements of the Privacy Amendment (Private Sector) Act 2000, Whiteheads will ensure that all credit and personal information obtained about me/us will be appropriately collected, used, disclosed and transferred and will be stored safely and protected against loss, unauthorised access, use, modification or disclosure and any other misuse. I/we understand that such information will be made available for viewing or amendment by me/us upon request to Whiteheads.
