Unless otherwise stated in a written quote provided by the Suppliers to the Applicant, acceptance of the Applicant’s order is subject to these Terms:
1. Settlement/Terms of Payment
a) Subject to the following Terms, trading terms are strictly payment within fourteen days from the date of invoice, or such other period as the Suppliers may notify the Applicant from time to time.
b) If prior lease, hire purchase or credit account arrangements are made, payment is to be as per the Suppliers’ quote and if the terms of payment are not set out in the quote, by payment within fourteen days of the date of invoice, or such other period as the Suppliers may notify the Applicant from time to time.
c) Failure to comply with paragraph (a) or (b) will constitute a breach of contract and the Suppliers may treat the whole Agreement as repudiated and act accordingly.
d) The Suppliers may refuse, without prejudice to any other rights it may have, to supply or deliver further Goods to the Applicant pursuant to the quote or otherwise until such time as the Applicant has remedied any default under the Agreement.
e) If the Applicant does not make payment as required, interest will be payable in relation to any unpaid amount. Such interest will be calculated by applying an interest rate being the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Victoria).
f) From time to time the Suppliers may notify the Applicant that these Terms do not apply to particular Goods or a class of Goods, in which case the trading terms for same will be strictly cash before delivery.
g) If the Applicant fails to pay any amounts when due, then in addition to any other amounts payable under these Terms, the Applicant must also pay upon demand any costs and expenses incurred in connection with enforcement of any of the Suppliers’ rights in connection with the Supplies, including without limitation:
- any legal costs (on a solicitor and own client basis) incurred by the Suppliers;
- any mercantile agents fees incurred by the Suppliers in recovering or attempting to recover any amount payable by the Applicant under these Terms, and
- any dishonour or bank fees incurred by the Suppliers in connection with payments or remittances that are made or which should have been made by the Applicant.
a) All prices quoted are ex the Suppliers’ location. Delivery, packaging, freight, insurance etc, are extras.
b) All prices quoted are current as at the date of the quote, but are subject to change on 14 days’ notice if considered by the Suppliers to be reasonably necessary.
c) All prices quoted are exclusive of Goods and Services Tax.
a) Any times or dates quoted for dispatch or delivery, whether quoted before or after the Suppliers’ acceptance of the Applicant’s order, are based on receipt by the Suppliers of full and final instructions enabling the Suppliers to proceed uninterrupted with the supply of the Goods. The Suppliers cannot accept responsibility for any delays due to causes outside its control. Whilst delivery times and dates are estimated as accurately as possible, they cannot be guaranteed nor is any such estimation of essence to or a condition of supply.
b) The Suppliers are not responsible for loss, damage or delay from any cause outside the Suppliers’ control. The Applicant is not entitled to any compensation from the Suppliers of any nature for such loss, damage or delay.
c) All Goods are at the Applicant’s risk during transit. The Suppliers’ liability for the Goods ceases on delivery to any authorised third party carrier, agent or representative of the Applicant.
d) Visible damage to Goods must be reported to the Suppliers within twenty-four (24) hours of receipt of the Goods.
4. Return of Goods
Except to the extent required by law, the Applicant will not be entitled to return any Goods and the Suppliers will not be obliged to accept the return of any Goods whatsoever.
5. Title & Copyright
a) Unless otherwise agreed in writing signed by the Suppliers, the Suppliers retain copyright and moral rights in each image produced and retains ownership of all originals and processed files supplied.
b) In addition, until all monies owing by the Applicant to the Suppliers from time to time have been paid in full, the relevant Suppliers shall retain beneficial title in all Goods supplied and the legal title to such Goods and their proceeds automatically vests in UA (as trustee for the Suppliers) upon the commencement of this agreement and such security interest (being a PPSA security interest) granted by the Applicant shall also automatically vest in UA (as trustee for the Suppliers). (See also amendment of Existing Agreements at clause 18 below).
c) If Goods to which legal title has not passed to the Applicant are in the possession of the Applicant, the Applicant is under an obligation to: (a) retain them in a good and merchantable condition until either paid for or collected by the Suppliers; and (b) allow the Suppliers and/or its servants or agents onto the premises where they are stored for the purpose of inspecting and collecting the Goods.
d) The Applicant is granted a non-exclusive license to use the images for the media, territory and duration as from time to time permitted by the Suppliers. This non- exclusive license is not transferrable and the images may not be passed on or on sold to any third party except with the Suppliers’ written permission.
6. Limits of Offer
When the Suppliers supply Goods to the Applicant, the Suppliers’ quote covers only the Goods listed in the basic specification of Goods offered. All descriptive material, drawings, particulars of weights and dimensions submitted with the Suppliers’ quotation are approximate. Certified information for installation purposes can be supplied on request.
Any performance figures given by the Suppliers in any quote for Goods are based upon normal design experience and are such as the Suppliers expect to obtain on test. The Suppliers will, however, accept no liability if these figures are not obtained, unless they are specifically guaranteed in writing in which case they would be subject to recognised and also reasonable tolerance and rejection limits applicable to such figures.
8. Limitation of Liability
a) Except to the extent required by law, all Goods are purchased by the Applicant “as is” and the Suppliers will not be responsible for any damage or defect to the Goods.
b) Any stipulations, terms or conditions contained in the Applicant’s order form which conflict with any of these Terms, are not accepted by the Suppliers and will be deemed to be inapplicable to any order placed with the Suppliers unless agreed upon in writing and signed by the Suppliers prior to delivery of the Suppliers’ Goods.
c) Subject to any conditions and warranties mandatorily implied by law and to any conditions and warranties expressly contained herein, all conditions, warranties and representations on the part of the Suppliers, whether express or implied, are hereby expressly excluded.
d) The Suppliers shall be under no liability to the Applicant for any loss or damage to any person or property or for death or injury caused by any act or omission by the Suppliers, its employees, agents or contractors.
e) Should the Suppliers be liable for breach of a condition or warranty mandatorily implied by law, its liability for such breach shall be limited to one of the following as determined by the Suppliers namely, the replacement of Goods, or the payment of the cost of having the Goods repaired or Services re-supplied.
f) Subject to any legislation or express agreement to the contrary, the Applicant acknowledges that it does not rely on the skill and judgment of the Suppliers, its employees, agents or contractors in determining whether the Goods to be supplied are fit for any particular purpose and the Applicant further acknowledges that any advice furnished by the Suppliers with respect to the use of Goods is given on the basis that the Suppliers assume no obligation or liability for advice given or results obtained, all such advice being given and accepted by the Applicant is at the Applicant’s risk.
g) To the extent permitted by law, the Applicant has responsibility for ensuring that the Goods are not used for any purpose for which they are not suitable and the Applicant warrants and represents that it has had adequate opportunity to inspect the Goods and to obtain independent expert advice if required. To the extent that any warranty as to purpose or merchantable quality is implied by law, the parties agree that the sole and exclusive remedy of the Applicant will be to return the Goods and obtain a refund or at the Suppliers’ election for the Suppliers to repair or replace the Goods as soon as reasonably practical.
h) To the extent permitted by law, under no circumstances shall the Suppliers be liable for any direct or indirect loss (including without limitation loss of profit) or damage whether special or consequential however arising (including as a result of negligence) except for any loss or damage (excluding loss of profit and special or consequential damage) suffered by the Applicant as a direct result of a failure by the Suppliers to perform their contractual obligations.
i) No claim or action shall be maintainable against the Suppliers unless it shall first have been notified thereof in writing and furnished with fully supporting documentary evidence in relation to the cause and quantum of such claim or action.
Signing of these Terms or placing an order after receipt of this document (whichever is the earlier) is deemed to be acceptance by the Applicant of these Terms.
10. Relevant Law
All contracts made hereunder are deemed to be made in the Governing State and except to the extent that the laws of the Commonwealth of Australia apply, the interpretation thereof and all disputes arising therefrom or connected therewith shall be governed in all respects by the laws of that State and all such disputes shall be referred to a Court of competent jurisdiction in that State or such other Court nominated by the Suppliers which would otherwise have jurisdiction.
These conditions may be altered only by the Suppliers’ management. Such alterations must be in writing and either given or signed by the duly authorised management of the Suppliers and no other employee of the Suppliers. The alterations will only take effect for orders received after the Applicant is given notice of the alterations. However, the Suppliers may at their discretion cancel credit or change the credit limit at any time and without notice to the Applicant.
12. Verification of Outstanding Amount
A statement signed by any Manager or Accountant of the Suppliers of the monies or other obligations owing hereunder in respect of the account of the Applicant as at a specified date shall be prima facie evidence that such amount or other obligation is owing.
13. Contracting Out
Where these Terms are inconsistent with the PPSA, the Australian Competition and Consumers Act 2009 (Cth) or any other legislation, to the extent permitted by law the parties are deemed to have expressly excluded and replaced those statutory provisions.
14. Exclusion of specific PPSA Provisions
a) The Applicant, the Suppliers and UA (as trustee for the Suppliers) contract out of the provisions of sections 95, 96, 117, 118, 121(4), 130, 132(3)(d), 132(4), 142 and 143 of the PPSA and nothing in those provisions will apply to this Agreement.
b) The Applicant, the Suppliers and UA (as trustee for the Suppliers) acknowledge that the Applicant is a grantor and UA (as trustee for the Suppliers) is or will become the holder of a Purchase Money Security Interest (PMSI) by virtue of this Agreement and/ or the PPSA.
The Applicant appoints and authorises UA (as trustee for the Suppliers) and any director, officer or solicitor of the Suppliers from time to time as its attorney to execute and deliver in its name:
a) such form of security interest, charge or mortgage as UA (as trustee for the Suppliers) or the Suppliers may reasonably require to better secure any charge granted under these conditions; and
b) any financing statement, consent form, security document or other document whatsoever for the purpose of:
(i) registering any caveat or other registrable interest in respect of the charge or any security interest whatsoever granted under these conditions; or
(ii) otherwise perfecting and enforcing the security interest.
16. Further Steps
The Applicant consents to registration of the security interests arising in favor of UA (as trustee for the Suppliers) as a result of these conditions and lodgement of a financing statement in respect of the security interests with the Personal Property Securities Register, and must do everything (including obtaining consents, signing and producing documents, completing documents or procuring that they are completed, and supplying information) which UA (as trustee for the Suppliers) considers necessary or desirable for the purposes of the PPSA including, without limitation:
a) ensuring that the security interests are registered, enforceable, continuously perfected and otherwise effective in accordance with the PPSA;
b) (enabling UA (as trustee for the Suppliers) to apply for any registration, or give any notification, in connection with the security interests; and
c) enabling UA (as trustee for the Suppliers) to exercise rights in connection with the security interests in accordance with the PPSA.
UA (as trustee for the Suppliers) and/or the Suppliers may, without notice, set-off any amount or obligation owing (whether actual or contingent) by the Applicant to the Suppliers under any agreement or otherwise against any amount owing by UA (as trustee for the Suppliers) and/or the Suppliers to the Applicant (whether actual or contingent).
18. Existing Agreements, Applicants and security interests - Transitional and Non- transitional PPSA security interests
Where the Applicant has previously entered into an agreement with one or more of the Suppliers for the supply of Goods on credit (Existing Agreement):
a) Upon any order being made by the Applicant for the supply of Goods after the first provision of this document to the Applicant:
(i) these Terms shall apply to such supply and any subsequent supply of Goods.
(ii) any security interest (including any PPSA security interest) granted by the Applicant under an Existing Agreement shall immediately vest in UA (as trustee for the Suppliers).
b) Any order made by the Applicant shall not constitute a new security agreement as between the parties, but only further performance of these Terms unless expressly excluded in writing signed by the Suppliers.
c) This Agreement will not act as a merger of their rights but that the terms contained under such Existing Agreement will be amended by the terms contained herein to the extent of any inconsistency.
a) By these Terms, the Suppliers provide credit to the Applicant in relation to all moneys payable from time to time for Goods supplied. These Terms shall govern all transactions between the parties as a single Security Agreement for the purposes of the PPSA.
b) If any provision of these Terms will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
c) All Goods are subject to the laws of the Governing State and the Suppliers take no responsibility for changes in the law which affect the Goods supplied.
d) UA and the Suppliers will be under no liability whatsoever to the Applicant for any indirect loss and/or expense (including loss of profit) suffered by the Applicant arising out of a breach by UA or the Suppliers of these Terms.
e) The Applicant waives the right to receive a copy of the verification statement confirming registration of a financing statement, financing change statement or notice of assignment relating to the security interests under this Agreement.
f) The Applicant and the Suppliers agree that the terms of this Agreement may be altered unilaterally by the Suppliers giving 14 days’ written notice to the Applicant. Clerical errors are subject to correction without notification.
g) Subject to clause 19(f) and any law the operation of which cannot be excluded, unless consented to in writing by the Suppliers, the Applicant, UA (as trustee for the Suppliers) and the Suppliers acknowledge that these Terms constitute the entire agreement between them and the only enforceable obligations and liabilities of the Applicant, UA (as trustee for the Suppliers) and the Suppliers in relation to its subject matter.
h) The Applicant hereby consents to and appoints UA (as trustee for the Suppliers) and the Suppliers to be an interested person and their authorized representative for the purposes of section 275(9) PPSA.
i) The Applicant agrees to reimburse UA (as trustee for the Suppliers) for all costs and/or expenses incurred or payable by UA (as trustee for the Suppliers) in relation to enforcing or releasing in whole or in part, the PPSA and/or other security interests under this agreement.
The Applicant hereby agrees:
(i) Any notice by UA (as trustee for the Suppliers) or the Suppliers to the Applicant will be sufficiently served if served personally or by facsimile transmission or if posted by prepaid post to the party to be served at the registered office of such party or its last known place of business and will be deemed to have been received within 2 days of the date of posting if served by post and immediately upon transmission if served by facsimile transmission;
(ii) That in addition to any other means permitted by law, any documents, notifications or court proceedings may be given or served upon the Applicant, its successors and permitted assignees in the same manner as any notice or document may be given under Part 8.5 of the PPSA and will be deemed so given or served; and
(iii) That the benefit of this credit contract and the security interest created hereunder may be assigned by UA (as trustee for the Suppliers) and/or the Suppliers, but not by the Applicant.
In these Terms (including this paragraph) the following apply unless the context otherwise requires:
“UA” means Urban Angles Pty Ltd (ABN 47 099 585 529) for itself and as agent for each of the Suppliers and each of their successors and assigns.
“Applicant” is a reference to the Applicant named in the attached credit application.
“Goods” means goods (as that term is defined under the PPSA) supplied by the Suppliers to the Applicant (and where the context so permits includes Services).
“Governing State” means the State of Victoria.
“includes” in any form is not a word of limitation.
“order” includes any offer or request.
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“quote” includes a bid.
“PPS security interest” means a security interest under the PPSA.
“Services” means all services supplied by the Suppliers to the Applicant and includes any advice or recommendations, intellectual or intangible property under the PPSA (and where the context so permits includes any supply of Goods).
“Supplied” means the sale, licensing, hiring out, consigning out, leasing out and/ or providing bailment of Goods by the Suppliers to or at the request of the Applicant in the ordinary course of the Supplier’s business.
“Suppliers” means UA and each and every of UA’s related entity (as that term is defined under the Corporations Act 2001) supplying Services from time to time to the Applicant.
“Terms” means these terms and conditions.
If a party consists of more than one person, the party’s obligations bind each such person, jointly and severally.
A reference to any legislation includes that legislation as amended from time to time.
Headings are for convenience only and do not affect interpretation.