Terms of service

This Agreement is made between Edwin George Thrush and Rosemary Christine Thrush trading as Plumboss Australia ABN 84 568 553 950 (the “Company”) and the persons described herein as the Client and the Guarantor on the following terms and conditions.

Acceptance

1.1. Each of the following shall constitute acceptance of these terms and conditions:

(a) the giving of any order, request or instruction by the Client to the Company;

(b) the Client’s acknowledgement or acceptance of, or acquiescence in, any confirmation by the Company of any order, request or instructions;

(d) the payment of any amount by the Client for products supplied by the Company; and

(e) any other conduct which indicates or constitutes acceptance of these terms and conditions by the Client.

1.2. Upon acceptance the terms and conditions are binding on the Client and can only be amended with the written agreement of the Company.

1.3. Where more than one Client or Guarantor enters into these terms and conditions, they are jointly and severally liable for all their obligations.

Credit Account

2.1. The Company may at its discretion open a Credit Account for the Client.

2.2. Only authorised representatives of the Client are authorised to transact on the Credit Account. The Client shall keep the Company notified of those persons at all times.

2.3. The Company may require the Client to spend a minimum dollar amount per year to obtain the products or services on credit (charged to the Credit Account).

2.4. The Company may from time to time at its absolute discretion specify the maximum (GST – inclusive) amount that may be charged to the Credit Account over a particular period (“Credit Limit”). The Client’s Credit Limit is subject to review at any time by the Company. Also, the Company may, on request in writing by the Client, agree in writing to increase or decrease the Credit Limit (including to zero).

2.5. The balance of the Credit Account at any time must not exceed the Credit Limit.

2.6. The Company may refuse to deliver or supply products or services and may refuse to provide further credit to the Company (“Stop Credit”) if:

(a) such delivery or supply or provision of further credit will cause the Client to exceed the Credit Limit; or

(b) any amounts payable by the Client to the Company are not paid when due; or

(d) the parties are in dispute about any matter or thing.

2.7. The Client agrees to immediately pay the amounts charged to the Credit Account for any products or services supplied by the Company in excess of the Credit Limit, whether or not demand for payment has been made by the Company.

2.8. The Client is responsible for and indemnifies the Company against any unauthorised use of the Credit Account by any person other than the Company (including any employee or third party).

2.9. The Company shall in its discretion issue the Client with periodic Credit Account Statements setting out all transactions charged and payments received in respect of the Credit Account. Statements shall be issued to the Client at least monthly upon the end of each month.

2.10.The Client shall pay the Company all amounts claimed as due and owing on each Credit Account Statement within 30 days of the date of the Credit Account Statement. All payments shall be in Australian Dollars (AUD).

2.11.Where the Client defaults in its payment obligations under these terms and conditions, any amounts owed by the Client to the Company in connection with these terms and conditions may be deducted from any fee payable by the Company to the Client (if any) under any other contract.

2.12.The Company may at its discretion levy as an administration charge a late payment fee of $50.00 (the “Fee”) for nonpayment of the Credit Account invoice where the Credit Account is more than 30 days due.

2.13.The Company shall charge and the Client shall pay default interest at the rate prescribed under Section 58 of the Civil Proceedings Act 2011 (Qld) as amended or replaced from time to time, on any and all overdue amounts payable under clause 2.10 hereof. The Company will charge interest from the 30th day after the date of the Credit Account Statement until the unpaid amount is paid from any settlement sum or court award as applicable. The Company may invoice the Client separately for interest and interest shall be payable upon receipt of the invoice by the Client.

2.14.A statement or tax invoice setting out details of the amount owing and any other matters relating to the Credit Account signed by an officer of the Company is sufficient evidence of the supply of the products or services by the Company to the Client. This statement or tax invoice may be used in court proceedings.

2.15.Any complaint made by the Client that a transaction recorded on the Client’s tax invoice is incorrect must be advised to the Company in writing within seven (7) days of the issue of the tax invoice. If this does not occur, the transactions recorded in the tax invoice are deemed by the Client to be correct.

2.16.If part of any amount set out in a tax invoice is in dispute, the Client agrees to pay the undisputed amount within the time period specified in clause 2.10.

Purchase Orders

3.1. The Client shall place purchase orders on the Company in such form and at such times as the Company may from time to time stipulate.

3.2. The Company is at liberty to accept or reject any purchase order at its sole discretion.

3.3. The acceptance of any purchase order by the Company is binding upon the Client.

3.4. Products ordered by the Company from third parties specifically to fill an order for the Client are non-refundable.

Prices, Charges & Payment

4.1. At the Company’s sole discretion the Price of products shall be either:

(a) as indicated on invoices provided by the Company to the Client in respect of products supplied; or

(b) as notified to the Client and published by the Company from time to time; or (c) the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company unless the Company withdraws the quote before it is accepted by the Client and provided always that the Client shall accept the Company’s quotation in writing within thirty (30) days after which the quote shall lapse.

4.2. The Company reserves the right to change the Price in the event of a variation to the Company’s quotation.

4.3. If at any time:

(a) raw material costs for the product,

(b) export and import fees,

(d) export, import and delivery taxes and similar fees, are changed due to decisions by suppliers, authorities or other third parties, or if new taxes and fees are imposed on the product or its transportation, then the Company may adjust the Prices payable hereunder accordingly by written notice to the Client.

4.4. The Company may at its discretion in relation to any order require payment of not less than thirty percent (30%) of the Price upfront before filling any order for products by the Client (the Upfront Payment).

4.5. Payment for products in full shall be due prior to delivery of the products unless the Company has opened a Credit Account for the Client, in which case payment of the balance outstanding shall be charged to the Credit Account and paid pursuant to clause 2.

4.6. All payments of products shall be made by electronic funds transfer into the bank account of the Company, the account details of which shall be notified in writing to the Client, or by such other means as the Company may direct, at its sole discretion.

4.7. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

4.8. The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Company.

4.9. Products ordered in by the Company from third party suppliers to fill a product order by the Client are nonrefundable.

Quantities and product updates

5.1. Nothing herein binds the Company to supply the Client with the exact quantity of any product specified in an order or confirmation notice and, provided the Company redresses any valid claim hereunder for short supply, the Company shall not otherwise be liable to the Client for any short or over supply of products.

5.2. The Company has the right to add/delete a product as well as change the specifications for a product at any time subject to giving the Client prior notice of the same.

Delivery

6.1. Delivery of the products shall take place when the products are dispatched from the Company’s premises or loaded onto or given to a carrier for dispatch to the Client, whichever occurs earlier in time.

6.2. The Company may at its discretion nominate a carrier for delivery of products and the Client must accept such nomination. Without limiting the foregoing, unless the Company agrees in writing otherwise:

(a) Orders in excess of $400.00 nett invoice value (excluding GST and delivery charges) will be delivered to metropolitan areas in Sydney, Newcastle, Wollongong, Canberra, Melbourne, Geelong, Adelaide and Perth by a freight company nominated by the Company.

(b) Orders in excess of $150.00 nett invoice value (excluding GST and delivery charges) will be delivered to metropolitan areas in Brisbane by a freight company nominated by the Company.

(d) All orders other than FIS deliveries will incur full freight charges.

(e) Specified methods of carriage, other than the above will be despatched freight collect and all other charges payable by the Client.

(f) All deliveries to any destination in the Northern Territory will be freight collect by method of carriage nominated.

(g) Any order placed with a value under $110.00 excluding GST, or any other amount notified to the Client from time to time, will be subject to a $14.00 service fee in addition to any delivery charges incurred. The service fee does not apply in cases where the invoice value is less than $110.00 excluding GST due solely to the Company being out of some lines at the time of packing the order. Nor does it apply to backorder deliveries.

(h) Backorders exceeding $50.00, or any other amount notified to the Client from time to time, will be supplied Free Into Store (“FIS”) as soon as the products become available. Backorders below that threshold will be held until another order is placed, unless otherwise requested. Unless FIS order value applies, freight on backorders of a special order item is to be paid in full by the Client.

6.3. At the Company’s sole discretion and subject to the preceding clause 6.2, the costs of delivery are:

(a) included in the Price; or

(b) in addition to the Price.

6.4. For the avoidance of doubt, the delivery costs shall include, but are not limited to, the following:

(a) insurance;

(b) carriage;

(d) demurrage;

(e) vehicle & equipment hire;

(f) any other costs associated with the delivery of the products as the Company shall notify the Client from time to time at its discretion.

6.5. The Client shall make all arrangements necessary to take delivery of the products whenever they are tendered for delivery and shall confirm delivery of the products by signing one delivery note upon receipt of the products. In the event that the Client is unable to take delivery of the products as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.

6.6. Upon delivery, the Company shall provide to the Client a tax invoice for the products and the relevant product warranty certificate, notice or statement.

6.7. Delivery of the products to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.

6.8. The Client is not entitled to demand delivery to another location than the one specified in this agreement.

6.9. The Company may deliver the products by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

6.10.The failure of the Company to deliver shall not entitle either party to treat this contract as repudiated.

6.11.The Client is responsible for providing adequate and suitable storage for the ordered quantity of products at the Client’s location. Damage to product delivered, to property of the Client or to a third party as a consequence of such storage not being provided at the time of delivery shall be compensated in full by the Client, who shall also compensate the Company in full for accrued additional costs incurred due to not being able to deliver the entire quantity.

6.12.The Company shall not be liable for any loss or damage whatever due to failure by the Company to deliver the products (or any of them) promptly or at all.

6.13.Delivery dates are indicative only. Nothing herein obliges the Company to effect delivery on or by those dates. Delayed deliveries do not entitle the Client to damages unless the parties have expressly agreed otherwise in writing.

6.14.It is the responsibility of the Client to meet the requirements for custom formalities by competent local authorities, including but not limited to sign and return to the Company any required customer documents (that is, Administrative Accompanying Documents or AAD documents). If the Client fails to do so promptly or in any event within one month, any consequential or related taxes arising shall be invoiced to and paid by the Client.

Risk

7.1. Whether or not the Company retains ownership of the products, all risk for the products passes to the Client on delivery.

7.2. If any of the products are damaged or destroyed following delivery but prior to ownership passing to the Client, the Company is entitled to receive all insurance proceeds payable for the products. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.

7.3. The Client disclaims any right to rescind, or cancel this agreement or any order with the Company or to sue for damages or to claim restitution arising out of any representation made to the Client by the Company and the Client acknowledges and accepts that the products are bought relying solely upon the Client’s skill and judgment.

Title

8.1. The Company and the Client agree that ownership of the products shall not pass until the Client pays all amounts owing for the particular products and takes delivery of the products from the Company.

8.2. Until ownership passes:

(a) the products shall be kept separate and identifiable from other products;

(b) the Client shall not remove or alter any packaging or indicia on the products;

(c) the Client shall return the products to the Company upon demand or allow the Company to enter and collect or seize them from the Client’s premises;

(d) the Company may stop products in transit whether or not delivery has occurred;

(e) the Client is only a bailee of the products and must not sell or deal in them;

(f) the Company can sue for the Price even if ownership has not passed;

(g) if the products are converted into other products, the Company’s rights hereunder apply to the end products.

8.3. Despite the foregoing, if the Client sells any products in respect of which title has not passed hereunder, the Client shall receive and hold all proceeds of such sale as trustee for the Company and shall immediately remit the same to the Company which the Company must apply towards discharging the amount or amounts owing hereunder in respect of the said products.

Defects and Warranty Any products supplied by us come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the products repaired or replaced if the products fail to be of acceptable quality and the failure does not amount to a major failure.

9.1. The Company warrants each product supplied hereunder in accordance with (and only to the extent of) the warranty documentation enclosed with or attached to the product or otherwise supplied to the Client in connection with the delivery of the product hereunder, subject always to law.

9.2. Subject to the conditions of warranty below, if products are defective, the Company’s liability is limited to either (at the Company’s discretion) replacing the products or repairing the products, or arranging for a third party to replace or repair the products, except where the Client has acquired products as a consumer in which case the Company shall refund the Price if the Client requests.

9.3. Notwithstanding the foregoing, this warranty does not cover defects caused wholly or partly by:

(a) use contrary to the specifications or any manual or instruction guide for the products;

(b) accidents;

(d) lightning, hurricane, tornado, cyclone, windstorm, earthquake or other acts of God;

(e) harmful chemicals (including harmful cleaning compounds); (f) fumes or vapours;

(g) surface deterioration due to air pollution, acid rain or other environmental pollution factor;

(h) misuse or abuse;

(i) vandalism;

(j) airborne stains, mould and mildew accumulation;

(k) failure to provide proper maintenance as per the specifications for the products;

(l) impact of foreign objects;

(m) warping or distortion due to exposure to excessive heat sources or exposure to excessive reflective heat sources; and

(n) any other causes beyond the Company's reasonable control.

9.4. For the purposes of this warranty provided herein, the conditions of warranty are:

(a) the Client must serve a warranty claim upon the Company within the applicable warranty period;

(b) the Client must make available for inspection by the Company the products within a reasonable time after the warranty claim is made;

(d) the Client must pay any travel expenses incurred by the Company in connection with any inspection of the products outside of Brisbane and Sydney metropolitan areas;

(e) the Client must show proof of purchase of the products to the Company at or prior to the inspection of the products;

(f) the Company reserves the sole right to determine whether the products contain any defects covered by the warranty;

(g) any tampering of the products (if any) undertaken without the authorisation or permission of the Company shall void the warranty provided herein;

(h) this warranty is not transferrable or assignable; and

(i) the products must not have had any of its serial numbers, bar codes or other identification marks removed and must not have been tampered with in anyway shape or form.

9.5. To the extent permitted by law, the Company shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the products or provided herein.

9.6. The Company shall give the Client a copy of the manufacturer’s warranty and product specifications upon request.

9.7. The Client shall inspect the products on delivery and shall within seven (7) days of completion of the delivery (time being of the essence) notify the Company of any alleged defect, shortage in quantity (subject always to clause 5), damage or failure to comply with the description or quote.

9.8. The Client shall allow the Company to inspect the products within a reasonable time following delivery if the Client believes the products are defective in any way.

9.9. This warranty only covers products of the Company, and does not cover identical or similar products sourced from any unauthorised third party suppliers.

9.10.The Client may only return products to the Company in the event of a valid warranty claim.

9.11.Any return of products will not be accepted by the Company without a prior written Goods Return Authority (“GRA”) in the form and containing the details and signatures prescribed by the Company. The GRA must set out the invoice number of the products being returned.

9.12.To the extent permitted by law, the Company shall issue a credit note equal to the Price of products accepted for return by the Company. The Company shall not be obliged to refund, repair or replace any products to or for the Client. The Client may apply the credit note against any subsequent invoice or invoices (as the case may be) issued by the Company to the Client. This shall be the Client’s only compensation for returned products.

9.13.All products returned to the Company will be subject to a restocking fee equal to 20% of the Price of the products.

9.14.Nothing in this warranty affects any implied conditions, warranties, rights or other entitlements under the Australian Consumer Law or any other legislation which cannot be excluded or limited by agreement. All other warranties are expressly excluded.

9.15.Where this warranty does not apply, it is the sole responsibility of the Client to meet any costs of repair or replacement of the defective products.

Hiring services

10.1.The Company may at its discretion bail and hire products (including parts, accessories, consumables, user manuals and other related items therefor – collectively herein called the Hired Goods) to the Client for an agreed period of time or on an ongoing basis (the Hire Period).

10.2.The Client shall sign and complete any documentation or agreement required by the Company detailing the Hired Goods, Hire Period and Hire Charges payable hereunder (the Hire Form).

10.3.Unless otherwise agreed by the Company (for example, on a Hire Form), the Hire Period commences from the time the Hired Goods are collected or dispatched from the Company’s premises until the time that the Hired Goods are received back at the Company’s premises. In that regard, the parties agree that references on the Hire Form or in any other agreement concerning the Hire Period:

(a) 1 day means 24 hours;

(b) 1 week means 7 days;

10.4.If the Client arranges a carrier to return Hired Goods to the Company upon completion of the period of hire, then the Client must notify the Company in writing of the carrier details including the consignment note number and the date and time of pick up and delivery.

10.5.The Client shall pay any security deposit required by the Company as a condition of the bailment and hire hereunder, before the commencement of bailment or hire.

10.6.The Client shall pay the Company all hire fees and charges prescribed on the Hire Form for the bailment and hire of the Hired Goods hereunder. Such fees and charges shall include without limitation all costs incurred by the Company in respect of delivery of the Hired Goods to the Client’s nominated location and collection of the Hired Goods at the end of the Hire Period, and GST (the “Hire Charges”).

10.7.The Client shall pay all Hire Charges invoiced to the Client:

(a) if the Client has a Credit Account, by charging the Hire Charges to the Credit Account which must be paid pursuant to clause 2 hereof; or

(b) otherwise, immediately upon receipt of the Company’s tax invoice for the Hire Charges.

10.8.The Client may at its discretion on-bail and on-hire the products to its customers for any period within the Hire Period on such terms and conditions as the Client thinks fit PROVIDED ALWAYS HOWEVER that:

(a) the Client shall notify the Company of the name, address, telephone number and email address of each customer to whom Hired Goods are hired; and

(b) the Client shall at all times be and remain responsible and liable for any loss or damage to the Hired Goods or to any third party or other property for any reason whatsoever, excepting damage to the Hired Goods caused by reasonable and fair wear and tear. All risk in the Hired Goods passes to the Client upon delivery of the Hired Goods hereunder.

10.9.The Client shall, as and when requested by the Company, report in writing to the Company the name, address, telephone number and email address of each customer to whom Hired Goods are hired.

10.10. The Company shall ensure the Hired Goods are in clean and good working order at the commencement of the Hire Period.

10.11. The Client shall ensure the Hired Goods are fully and properly cleaned at the expiration of the Hire Period and when the Hired Goods are returned to the Company, otherwise the Client shall be liable to the Company for any cleaning fee specified in the Hire Form which may be deducted from any deposit and/or added to any hiring fees and charges payable hereunder.

10.12. The Client shall, and shall ensure each of its customers shall, at all times:

(a) use the Hired Goods in a skilful and proper manner having regard to statutory and other regulations in force, including, when appropriate, the requirements for operation or use by a properly certified and/or licensed person;

(b) use the Hired Goods only in accordance with the manufacturer’s guidelines or any instruction or user manual supplied therewith;

(d) note and observe all instructions and notices regarding the safe and proper use of the Hired Goods;

(e) not actually or attempt to repair, deconstruct, pull apart, mark, rewire, reverse engineer or otherwise tamper or interfere with the Hired Goods or any notices or insignia thereon;

(f) if unfamiliar with the particular Hired Goods, ensure that the necessary information or instruction is obtained; and

(g) ensure the Hired Goods are not overloaded, are not filled with unsuitable fuel or oil, and are used with all appropriate safety clothing, equipment, instructions and accessories.

10.13. The Client shall at their own expense service, clean and maintain the Hired Goods in good and substantial repair and condition, reasonable and fair wear and tear excepted, and the Client shall return the Hired Goods to the Company at the end of the Hire Period in clean and good working order and condition.

10.14. The Client is solely responsible and liable for the operation of the Hired Goods, including the installation, testing and commissioning of the Hired Goods where that is required by the Client or its customer in order to operate and use the same pursuant hereto.

10.15. The Company shall not be liable for any loss or damage of any kind (including without limitation consequential, indirect, special or pecuniary financial loss or damage) arising from any breakdown or failure of any Hired Good in any way, any delay in fulfilment of the Company’s obligations hereunder, or other fact or circumstances whatsoever. The Client’s sole entitlement and remedy in such circumstances shall be to return the Hired Goods to the Company and to obtain an abatement of Hire Charges in respect of the period of such breakdown or failure.

10.16. The Company shall not be liable to any third party for any injury, loss or damage of any kind arising as a direct or indirect result of the use of the Hired Goods by the Client or any of its customers hereunder.

10.17. The Client hires the Hired Goods from the Company at its own risk and in reliance upon its own inquiries, investigations, knowledge and belief. The Client does not rely upon any representations of the Company whatsoever as to the use, suitability, operation, function or performance of Hired Goods.

10.18. To the maximum extent permitted by law, the Company does not warrant the use, utility, merchantability, acceptability, fitness for purpose, compliance with sample or any other aspect or feature of the Hired Goods. Nothing herein affects any implied conditions, warranties, rights or other entitlements under the Australian Consumer Law or any other legislation which cannot be excluded or limited by agreement.

10.19. The Company may terminate the bailment and/or hire of any Hired Goods hereunder if:

(a) the Company discovers or suspects the breach of any of these terms by the Client or any customer (including without limitation if any monies due hereunder are not paid by the due date or at all), or

(b) The Client or any customer becomes bankrupt or insolvent, or if a trustee in bankruptcy, external administrator, receiver or liquidator is appointed to the affairs of the Client or customer (as the case may be); or

(c) there is a product recall concerning the Hired Goods or if there is any valid safety concern regarding the Hired Goods, or

(d) on any other sufficient ground determined by the Company. The Company must act reasonably.

10.20. The Client shall indemnify the Company from and against all loss and damage to the Hired Goods and the Company’s other property in connection with the bailment and hire of the Hired Goods hereunder, and without limiting the foregoing the Company shall be entitled to deduct such indemnified amounts from and against any security deposit taken under and pursuant to clause

10.3 in payment thereof.

Default & Indemnity

11.1.If at any time the Client is in breach of its obligations under these terms and conditions, the Company may suspend or terminate the Credit Account and/or the supply of products to the Client. The Company will not be liable to the Client for any loss or damage the Client suffers because the Company has exercised its rights under this clause.

11.2.The Client shall indemnify the Company from and against all loss, damage, costs and disbursements incurred by the Company in respect of any default under these terms and conditions by the Client, including legal costs and collection agency costs.

11.3.Without prejudice to any other remedies the Company may have at law, if at any time the Client or the Guarantor is in default of any obligation contained under these terms and conditions, the Company shall have the right to enforce all of its rights under the PPSA.

Representations

12.1.The Client and the Guarantor represent and warrant that:

(a) they are not bankrupt, insolvent or under external administration;

(b) they are adequately insured with a reputable insurer;

(d) all corporate authorisations and approvals necessary have been obtained;

(e) all governmental licenses and approvals necessary have been obtained;

(f) neither of them has withheld any information material to the Company’s decision to enter these terms and conditions; and

(g) their signatory/ies hereunder are duly authorised to sign on their behalf.

12.2.The Client and the Guarantor must immediately notify the Company if any of these representations and warranties cease to be true and correct at any time.

Security Bond

13.1.The Company may require the Client to pay a deposit bond or bank guarantee to the Company as security for payment of any order for or sale or supply or hire of products hereunder.

13.2.The value of the deposit bond or bank guarantee shall be such amount as the Company shall determine in its absolute discretion provided however the amount shall not exceed any maximum value prescribed by law.

13.3.The Company may draw upon the deposit bond or bank guarantee at the Company’s discretion for the purpose of making up and discharging any unpaid or outstanding amounts owing by the Client under these terms and conditions.

13.4.The Company may require the Client to top up or replace any deposit bond or bank guarantee hereunder in the event of any drawing under clause 13.3. If the Client fails to do so within 7 days of such demand, the said failure shall constitute a material default under these terms and conditions entitling the Company to terminate and pursue the Client for its loss and damage.

Guarantee and indemnity:

14.1.The Guarantor unconditionally guarantees to the Company the due and punctual performance by the Client of the terms covenants and obligations on the part of the Client under these terms and conditions.

14.2.The Guarantor shall indemnify the Company, and keep the Company indemnified, from and against any and all claims, demands, actions, proceedings, losses, damages and costs that the Company incurs or may incur as a result of any breach by the Client of these terms and conditions.

14.3.The Guarantor’s liability under the aforesaid guarantee and indemnity is unlimited and the Guarantor’s obligations continue notwithstanding:

(a) any agreement or arrangement between the Company and the Client;

(b) any alteration or replacement of these terms and conditions;

(d) the appointment of an official manager, administrator, receiver, receiver and manager, liquidator or provisional liquidator of the Client; or

(e) any order or statutory provision having the effect of restricting or deferring claims against the Client by its creditors.

14.4.The Guarantor is liable to the Company hereunder notwithstanding that the Company may at any time obtain a judgment against the Client in connection herewith.

Personal Property Securities Act (PPSA)

15.1.The Client and/or the Guarantor grant a purchase money security interest and a charge over all products it has or they have acquired from the Company to secure payment of the products and Credit Account in accordance with these terms and conditions and the provisions of the PPSA, and the Company agrees to take a purchase money security interest and a charge over the products, which security interest shall be registered on the PPSR. The Client and the Guarantor shall do all such things necessary to perfect the Company’s security interest hereunder.

15.2.The security interests of the Company hereunder have priority over all other creditors of the Client and the Guarantor in relation to the products.

15.3.The Client and the Guarantor authorise under section 275(7)(c) of the PPSA, the disclosure of information by a secured party under section 275(4) of the PPSA in response to any request for information from an interested person pursuant to sections 275(1) to (3) of the PPSA.

15.4.The Client and the Guarantor will not without written notice to the Company, change their name or initiate any change to any documentation registered under the PPSA in relation to these terms and conditions.

15.5.The Company undertakes to maintain the accuracy of the registered security interest and may remove the registration when the Client and Guarantor have paid all amounts owed to the Company in relation to the products and any Credit Account.

Credit checking

16.1.The Company may obtain from a credit reporting agency a credit report about the Client and Guarantor.

16.2.The Company may exchange information about the Client and the Guarantor with credit reporting agencies, credit providers and trade referees to assess the Client’s credit worthiness and to notify third parties of any defaults hereunder.

16.3.The Client consents to the Company being given a consumer credit report to collect overdue payment on commercial credit under S.18K(1)(h) of the Privacy Act.

16.4.The Client agrees that personal credit information provided may be used and retained by the Company to provide products, market the Company’s products and services, process payments hereunder and operate the Credit Account.

Privacy Notice

17.1.The Company is allowed to give credit reporting agencies personal information about your credit application, but only limited to kinds of information allowed by the Privacy Act 1988 (Cth). This includes:

(a) Identity particulars such as your name, sex, date of birth, current known address, two immediately previous addresses, your current or last known employer and your driver’s licence number;

(b) The fact that you have applied for credit and the amount;

(d) Advice that payment is no longer overdue;

(e) Cheques drawn by you which have been dishonoured more than once;

(f) If in the opinion of the Company you have committed a serious credit infringement;

(g) That credit provided to you has been paid or otherwise discharged.

Limitation of liability

18.1.The Company shall be under no liability whatsoever to the Client for any indirect, special or consequential loss, damage or expense (including loss of profit) suffered by the Client arising out of any act or omission of the Company or any breach by the Company of these terms and conditions.

18.2.Further, in the event of any breach of this agreement by the Company, the remedies of the Client shall be limited to damages which under no circumstances shall exceed the amount equal to the aggregate of the Prices of the products delivered under this agreement during the 12 months preceding the date of the breach.

Force majeure

19.1.In case of fire, sea accident, failure of machinery, or other accident, ice hindrance, flood, water shortage, or other natural disaster, vehicle or tonnage shortage or other traffic disturbance, strike, lockout, blockade, riot, revolution, mobilization or state of war, currency problems, import restrictions, or other government actions, or circumstances within or outside Australia of any kind out of the Company’s control, that hinders, considerably increases the price, or otherwise complicates the Company’s procurement from any one of the Company’s suppliers of product, raw material or other necessities for the Company’s production or product treatment, transportation or delivery, regardless if these circumstances are currently existing or not and also regardless if the hindrance or delivery problem is considered of such a nature that it can be taken into account at the present time the Company is entitled to, without liability for damages, prolonging the delivery time while the occurring circumstance remains, to annul the entire agreement or parts of it, to withdraw the offer if an agreement is not yet reached and to raise the price with an amount corresponding to the cost inflicted on the Company by the occurred circumstance. The Client is however not bound to accept products for which the Company demands such a raised price.

Dispute resolution

20.1.If a dispute arises out of or relates to this Agreement, the breach, termination, validity or subject matter of this Agreement, or any claim in tort, in equity or pursuant to any domestic or international statute or law, then subject always to clause 20.6 the parties to the Agreement and to the dispute expressly agree to endeavour in good faith to settle the dispute by mediation administered by a mediator appointed under the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia as in existence at the time written notice is received by the parties.

20.2.A party claiming that a dispute has arisen must give written notice to the other parties to the dispute specifying the nature of the dispute.

20.3.On receipt of the notice specified in clause 20.2, the parties to the dispute must within seven (7) days of receipt of notice seek to resolve the dispute.

20.4.If the dispute is not resolved within the said seven (7) days or within such further period as the parties agree, then the parties must mediate the dispute and adopt the provisions of, and the procedures noted in, the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in clause 20.2.

20.5.The terms of the Mediation and Conciliation Rules of the Institute of Arbitrators and Mediators of Australia, being the Rules in existence at the date of the notice specified in clause 20.2, are hereby deemed incorporated into this Agreement.

20.6.Notwithstanding the foregoing, the Company shall always have the right to institute legal proceedings in any court of competent jurisdiction in order to collect payments due to the Company under this agreement or any related agreement.

20.7.This clause 20 survives termination or expiration of this Agreement.

General

21.1.The Company may assign, license or sub-contract all or any part of its rights and obligations hereunder (including the Company’s interest in any order, invoice or Credit Account of the Client), without the Client’s consent.

21.2.The Client and the Guarantor shall not assign, license or sub-contract any part of its rights and obligations hereunder without the Company’s prior written fully informed consent.

21.3.The Company reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Client of such change.

21.4.These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.