TERMS & CONDITIONS OF TRADE
KRITES PTY LTD (ACN 093 729 269)
In these conditions unless the context otherwise requires:
1. “Applicant” means the person(s), firm, company, trustee(s), trust, partnership or any entity that applies for credit facilities with us and submits an Application for Credit with Us.
2. “Application” means the document entitled Application for Credit issued by Us to the Applicant
3. “Goods” means the products or stock ordered by You from time to time.
4. “GST” means goods and services tax, consumption tax; value added tax, retail turnover tax or a tax of a similar nature.
5. “GST Law” means A New Tax System (Goods and Services Tax) Act 1999 as amended.
6. “Primary Payment” means any payment by You to Us of the price for the Goods or any monies payable by You to Us under these Terms and Conditions.
7. “Tax Invoice” means an invoice in the format required by the GST Law and which also shows the amount of GST payable by You in respect of the relevant Primary Payment.
8. “Terms and Conditions” means these terms and conditions as amended by Us from time to time.
9. “We” and “Our” and “Us” and “Seller” means Krites Pty Ltd (ACN 093 729 269) which is the provider of the Goods.
10. “You” and “Your” means You the Applicant, or the purchaser of the Goods from Us, as the case may be
11. Terms and Conditions of Sale All Goods sold by Us to You are sold subject to these Terms and Conditions.
3. Our Quotations
Unless previously withdrawn, Our quotations are open for acceptance within the period stated in them or, when no period is so stated, within fourteen (14) days only after the quotation’s date. We reserve the right to refuse any order based upon Our quotation within seven (7) days after receipt of that order.
The cost of any special packing and packing materials used in relation to the Goods are at Your expense notwithstanding that such cost may have been omitted from any quotation.
5.1 The delivery times made known to You are estimates only and We are not liable for late delivery or non-delivery.
5.2 We are not liable for any loss, damage or delay occasioned to You or Your customers arising from late delivery or non-delivery of the Goods.
5.3 We may at our option deliver the Goods to You in any number of instalments unless otherwise agreed in writing.
5.4 If We deliver any of the Goods by instalments, and any one of those instalments is defective for any reason:
• then such defect is not a repudiation of the contract of sale formed by these Terms and Conditions; and
• the defective instalment is a severable breach that gives rise only to a claim for compensation.
6. Loss or Damage in Transit & Risk
6.1 We are not responsible to You or any person claiming through You for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not We are legally responsible for the person who caused or contributed to that loss or damage).
6.2 We must provide You with such assistance as may be necessary to press claims on carriers so long as You:
• have notified Us and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and
• lodge a claim for compensation on the carrier within three (3) days of the date of receipt of the Goods.
6.3 Risk in the Goods will pass to You upon delivery of the Goods to You or upon collection of the Goods by You or Your agent or courier as the case may be.
6.4 Any property of Yours under Our custody or control will be entirely at Your risk as regards loss or damage caused to such property.
7. Returned Goods
7.1 Subject to clause 8, We are not under any duty to accept Goods returned by You and will do so only on terms to be agreed in writing in each individual case.
7.2 You will be deemed to have accepted the Goods free of defect or any non-conformity unless We receive a substantiated written claim within seven (7) days of the date We deliver or otherwise attempt to deliver the Goods to You, as the case may be.
7.3 If We agree to accept returned Goods from you under clause 7.1 or 7.2, You must return the Goods to Us at Our place of business.
8. Exclusion of Warranties & Limitation of Liability
8.1 All warranties whether expressed or implied and whether statutory or otherwise with regard to the Goods supplied by US as to quality, fitness for purpose or any other matter are hereby excluded except in so far as any such warranties are incapable of exclusion at law.
8.2 Our liability for a breach of a condition or warranty implied by the Competition and Consumer Act 2010 is limited to:
• the replacement of the Goods or the supply of equivalent Goods;
• the repair of the Goods;
• the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
• the payment of the cost of having the Goods repaired.
9. Prices & Payment
9.1 Unless otherwise stated all prices quoted by Us are net, exclusive of GST.
9.2 Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the cost of production on the date is made.
9.3 If We are liable by law for any GST on any Primary Payment, You must pay to Us the amount of the GST in addition to the Primary Payment.
9.4 You must pay to Us an amount in respect of any GST that You are required to pay under these Terms and Conditions, at the same time; and in the same manner, as You are required to pay for the Primary Payment to which the amount in respect of GST relates.
9.5 We must issue to You a Tax Invoice in accordance with the GST Law.
9.6 If We refund to You any amount under these terms and conditions, We must also refund to You an amount in respect of any GST that You paid in respect of that amount.
• In the case of non-account customers, You must pay for the Goods in the following manner:
(a) a deposit of fifty per cent (50%) of the price of the Goods when you order the Goods or other agreed percentage; and
(b) the balance of the price of the Goods prior to the delivery of the Goods to You.
9.8 In the case of account customers You must pay for the price of the Goods within thirty (30) days of the date of Our Tax Invoice issued in relation to the relevant Goods. In the case of any default in payment then any future orders made by You will be subject to the payment of the price of the Goods in advance of delivery.
9.9 You acknowledge and accept that You are liable to pay Us the price of all Goods ordered by You at all times and also in the event such Goods are not delivered to You pursuant to clause 17.1due to Your default in complying with these Terms and Conditions.
9.10 If You do not pay for the Goods as required in this clause 9, We reserve the right to charge interest on amounts overdue, which interest is calculated daily at the rate of 10% per annum from the date of the outstanding order and/or tax invoice until payment is made.
10. Retention of Title
10.1 Notwithstanding delivery of the Goods to You, until You have effected full payment for the Goods and for any other Goods previously supplied by Us:
(a) legal title to the Goods will remain with Us;
(b) the risk in the Goods will pass to You on delivery to You or to Your agent;
(c) the relationship between Us and You will be as fiduciary;
(d) You will:
(i) hold the Goods as bailee for Us;
(ii) keep the Goods separate from other goods; and
(iii) label the Goods so that they are identifiable as Our Goods;
(e) You are at liberty to sell the Goods, in the ordinary course of Your business, provided that the money resulting from the sale will:
(i) be held in a separate account in trust for Us;
(ii) not be mingled with any other money;
(iii) not be placed into an overdrawn account.
10.2 Without limitation to our rights at law or in equity, in the event that You fail to pay Us for the Goods by the due date required for payment in accordance with these Terms and Conditions or Our Tax Invoice then We may, without demand, retake possession of the Goods and may, without notice, sell the Goods on such terms and in such manner as We determine and We will be entitled to deduct all expenses incurred. For the purposes of recovering possession and without limiting the generality of the foregoing, You irrevocably authorise Us and Our servants and agents to enter any premises where the Goods may be stored and to take possession of the Goods.
10.3 The parties acknowledge that by supplying or accepting Goods subject to the retention of title rights set out in this clause 10, it is not intended to create a charge or mortgage over any of the Goods supplied.
10APersonal Properties Securities Act (2009) (Cth)
10A.1 In this clause 10A:
• “PPSA” means the Personal Properties Securities Act (2009) (Cth) as amended.
• “PPSA Security Interest” has the meaning given to the term “security interest” in the PPSA.
• “PPS Register” means the Personal Properties Securities Register established under Section 147 of the PPSA
• “Financing Statement” has the meaning given to it by the PPSA.
• “Financing Change Statement” has the meaning given to it by the PPSA
• “Security Agreement” means the security agreement under the PPSA created between Us and You under these Terms and Conditions
10A.2 You acknowledge that these Terms and Conditions constitute a Security Agreement for the purposes of the PPSA and that a PPSA Security Interest exists on all Goods supplied by Us to You pursuant to these Terms and Conditions.
10A.3 You consent to Us effecting a registration on the PPS Register (in any manner We deem appropriate) in relation to any PPSA Security Interest arising under these Terms and Conditions.
10A.4 You undertake to do the following:
• Promptly execute all documents and provide all relevant information and cooperate with Us to do any act or thing that We require to ensure that We have a perfected PPSA Security Interest and have priority over other PPSA Security Interests in the Goods including, but not limited to, enabling Us to register a Financing Statement or Financing Change Statement with the PPS Register
• Indemnify and upon demand reimburse Us for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPS Register or any release of Our PPSA Security Interest.
• That until all monies owing to Us are paid in full You must not grant any other PPSA Security Interest in the Goods.
• Not give to Us a written demand or allow any other person to give to Us a written demand requiring Us to register a Financing Change Statement under the PPSA without Our prior written consent.
• Not register or permit to be registered a Financing Statement or Financing Change Statement in relation to the Goods in favour of any third party or entity without Our prior written consent.
10A.5 To the extent that Chapter 4 of the PPSA would otherwise apply to the enforcement by Us of any PPSA Security Interest in the Goods then You agree that the following provisions of the PPSA are excluded and You expressly waive Your rights under each of those provisions of the PPSA:
• Section 95 – Notice of intention of removal of an accession to the extent that section requires Us to give such a notice to You.
• Section 96 – When a person with an interest in the whole of the Goods may retain an accession.
• Section 118 – To receive a notice that We decide to enforce our PPSA Security Interest in accordance with land law.
• Section 121(4) – To receive a notice of enforcement action against liquid assets.
• Section 125 – Obligation to dispose of or retain collateral.
• Section 130 – To receive a notice of the disposal of the Goods to the extent that section requires Us to give such a notice to You.
• Section 132(2) – To receive a statement of account following disposal of the Goods.
• Section 132(3)(d) – The contents of a statement of account after disposal of the Goods.
• Section 132(4) – To receive a statement of account if no disposal of the Goods for each six month period.
• Section 135 – To receive a notice of any proposal of Ours to retain the Goods.
• Section 137(2) – To object to any proposal by Us to either retain, dispose or purchase the Goods.
• Section 142 – To redeem the Goods.
• Section 143 – To reinstate the Security Agreement.
• Section 157(1) and Section 157(3) – To receive notice of any verification statement.
10A.6 We agree not to disclose the information of the kind set out in subsection 275(1) of the PPSA except in circumstances required by subsection 275(7)(b)-(e) of the PPSA.
10A.7 You agree that where We have rights in addition to those under Chapter 4 of the PPSA those rights will continue to apply.
10A.8 You acknowledge and accept that You have received value as at the time of first delivery of the Goods and do not agree to postpone the time for attachment of the PPSA Security Interest granted to Us under these Terms and Conditions.
10A.9 In the event We are entitled to exercise our rights under Section 128 of the PPSA You grant to Us the right to enter upon any premises where the Goods are stored so We may take possession of the Goods without being liable to You or any third party and You shall indemnify Us from any claims made by any third party in the event We exercise our rights pursuant to this clause 10A.9.
11.1 We reserve the right to make a reasonable charge for storage if:
(a) delivery instructions are not provided by You within fourteen (14) days of a request by Us for such instructions. Such charge is payable from the first day after delivery instructions were sought until the date of receipt of such instructions; and
(b) you do not want Goods to be delivered to You from the time they are ready for delivery. Such charge is payable from the first day the Goods are ready to be delivered to You until You instruct us to deliver the Goods.
12. Goods sold
All Goods to be supplied by US to You are as described on the order agreed by Us and You and the description on such order prevails over all other descriptions including any specification or requirements stipulated by You .
13.1 No order may be cancelled except with Our consent in writing and on terms which will indemnify Us against all losses incurred by Us.
13.2 We shall be entitled to charge a reasonable cancellation fee (being not less than 30% of the amount of the order) for any work done on your behalf to the date of cancellation, including a fee for the processing and acceptance of your order and request for cancellation.
14. Proper Law
14.1 This contract shall be governed by and construed pursuant to the laws for the time being in force in New South Wales.
14.2 The parties submit all disputes arising between them to the courts of New South Wales and any court competent to hear appeals from those courts of first instance.
15. Force Majeure:
If for any reason beyond Our control (including without limitation as a result of any strike, war, terrorist attack, trade dispute, fire, tempest, theft or breakdown), orders cannot be delivered at the time stipulated by You, We shall be entitled to cancel the order and You shall not have any claimagainst Us for loss, damages, costs or expenses arising out of such cancellation. The cancellation of an order is without prejudice to Our rights to recover all sums owing to Us in respect of deliveries made or Goods provided prior to the date of such cancellation.
16. Waiver or Variation
16.1 Our failure or delay to exercise a power or right under these Terms and Conditions does not operate as a waiver of that power or right.
16.2 The waiver or variation of the provision of these Terms and Conditions or Our consent to a departure from the provision by You will be ineffective unless in writing signed by Us.
17.1 In the event of Your default under these terms and conditions, We shall be entitled to withhold the delivery to You of any Goods ordered by You as at the date of such default.
17.2 In the event of Your default under these terms and conditions You shall pay to Us on demand all costs including without limitation all legal costs (on a solicitor/own client basis) and mercantile agents fees incurred by Us in recovering or attempting to recover all amounts outstanding and payable under these Terms and Conditions including but not limited to any dishonour or bank fees incurred by Us relating to payments made by You from time to time.
18. Change of Ownership
You agree to notify Us in writing of any change of Your ownership within 7 days from the date of such change and to indemnify Us against any loss or damage incurred by Us as a result of Your failure to do so.
If any part of these Terms and Conditions are invalid or unenforceable, these Terms and Conditions do not include it. The remainder of these Terms and Conditions continue in full force.