12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes
due daily until the date of payment at a rate of 2.5% compounding per calendar
month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall
indemnify the Seller from and against all the Seller’s costs and disbursements
including on a solicitor and own client basis and in addition all of the Seller’s
nominees costs of collection.
12.3 If the Buyer’s payment is dishonoured by their bank, then the Seller reserves the
right to increase the amount of the Price by any charges for dishonours charged
by the Sellers bankers.
12.4 Without prejudice to any other remedies the Seller may have, if at any time the
Buyer is in breach of any obligation (including those relating to payment), the
Seller may suspend or terminate the supply of Goods to the Buyer and any of its
other obligations under the terms and conditions. The Seller will not be liable to
the Buyer for any loss or damage the Buyer suffers because the Seller exercised
its rights under this clause.
12.5 If any account remains unpaid at the end of the second month after supply of the
Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the
amount overdue shall be levied for administration fees which sum shall become
immediately due and payable.
12.6 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion
the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer becomes insolvent, convenes a meeting with its creditors or
proposes or enters into an arrangement with creditors, or makes an
assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is
appointed in respect of the Buyer or any asset of the Buyer,
then without prejudice to the Seller’s other remedies at law:
(i) the Seller shall be entitled to cancel all or any part of any order of the Buyer
which remains unperformed in addition to and without prejudice to any other
remedies; and
(ii) all amounts owing to the Seller shall, whether or not due for payment,
immediately become payable in addition to the interest payable under clause
12.1 hereof.
13. Title
13.1 It is the intention of the seller and agreed by the Buyer that property in the Goods
shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods, and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in
respect of all contracts between the Seller and the Buyer, and that where
practicable the Goods shall be kept separate until the Seller shall have
received payment and all other obligations of the Buyer are met.
13.2 Receipt by the Seller of any form of payment other than cash shall not be deemed
to be payment until that form of payment has been honoured, cleared or
recognised and until then the Seller’s ownership of rights in respect of the Goods
shall continue.
13.3 It is further agreed that:
(a) Until such time as ownership of the Goods shall pass from the Seller to the
Buyer the Seller may give notice in writing to the Buyer to return the Goods or
any of them to the Seller. Upon such notice the rights of the Buyer to obtain
ownership or any other interest in the Goods shall cease.
(b) The Seller shall have the right of stopping the Goods in transit whether or not
delivery has been made; and
(c) If the Buyer fails to return the Goods to the Seller then the Seller or the
Seller’s agent may enter upon and into land and premises owned, occupied
or used by the Buyer, or any premises as the invitee of the Buyer, where the
Goods are situated and take possession of the Goods.
(d) The Buyer is only a bailee of the Goods and until such time as the Seller has
received payment in full for the Goods then the Buyer shall hold any
proceeds from the sale or disposal of the Goods on trust for the Seller.
(e) The Buyer shall not deal with the money of the Seller in any way which may
be adverse to the Seller.
(f) The Buyer shall not charge the Goods in any way nor grant nor otherwise give
any interest in the Goods while they remain the property of the Seller.
(g) The Seller may require payment of the Price or the balance of the Price due
together with any other amounts due from the Buyer to the Seller arising out
of these terms and conditions, and the Seller may take any lawful steps to
require payment of the amounts due and the Price.
(h) The Seller can issue proceedings to recover the Price of the Goods sold
notwithstanding that ownership of the Goods may not have passed to the
Buyer.
(i) Until such time that ownership in the Goods passes to the Buyer, if the Goods
are so converted, the parties agree that the Seller will be the owner of the
end products.
14. Security And Charge
14.1 Despite anything to the contrary contained herein or any other rights which the
Seller may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or
any other asset capable of being charged, both the Buyer and/or the
Guarantor agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to the Seller or the Seller’s
nominee to secure all amounts and other monetary obligations payable under
the terms and conditions. The Buyer and/or the Guarantor acknowledge and
agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where
appropriate a caveat, which caveat shall be released once all payments and
other monetary obligations payable hereunder have been met.
(b) Should the Seller elect to proceed in any manner in accordance with this
clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the
seller from and against all the Seller’s costs and disbursements including
legal costs on a solicitor and own client basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the
Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute
and appoint the Seller or the Seller’s nominee as the Buyer’s and/or
Guarantor’s true and lawful attorney to execute mortgages and charges
(whether registerable or not) including such other terms and conditions as the
Seller and/or the Seller’s nominee shall think fit in his/her/its/their absolute
discretion against the joint and/or several interest of the Buyer and/or the
Guarantor in any land, realty or asset in favour of the Seller and in the
Buyer’s and/or Guarantor’s name as may be necessary to secure the said
Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and
further to do and perform all necessary and other acts including instituting
any necessary legal proceedings, and further to execute all or any documents
in the Seller’s absolute discretion which may be necessary or advantageous
to give effect to the provisions of this clause.
15. Cancellation
15.1 The Seller may cancel these terms and conditions or cancel delivery of Goods at
any time before the Goods are delivered by giving written notice. The Seller shall
not be liable for any loss or damage whatever arising from such cancellation.
15.2 At the Sellers sole discretion the Buyer may cancel delivery of Goods. In the event
that the Buyer cancels delivery of Goods the Buyer shall be liable for any costs
incurred by the Seller up to the time of cancellation.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a creditreporting
agency a credit report containing personal credit information about the
Buyer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the Guarantor/s agree that the Seller may exchange information
about Buyer and Guarantor/s with those credit providers named in the Application
for Credit account or named in a consumer credit report issued by a reporting
agency for the following purposes:
(a) To assess an application by Buyer;
(b) To notify other credit providers of a default by the Buyer;
(c) To exchange information with other credit providers as to the status of this
credit account, where the Buyer is in default with other credit providers; and
(d) To assess the credit worthiness of Buyer and/or Guarantor/s.
16.3 The Buyer consents to the Seller being given a consumer credit report to collect
overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Buyer agrees that Personal Data provided may be used and retained by the
Seller for the following purposes and for other purposes as shall be agreed
between the Buyer and Seller or required by law from time to time:
(a) provision of Services & Goods;
(b) marketing of Services and/or Goods by the Seller, its agents or distributors in
relation to the Services and Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status
in relation to provision of Services/Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit
facilities requested by Buyer; and
(e) enabling the daily operation of Buyer’s account and/or the collection of
amounts outstanding in the Buyer’s account in relation to the Services and
Goods.
16.5 The Seller may give, information about the Buyer to a credit reporting agency for
the following purposes:
(a) to obtain a consumer credit report about the Buyer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file
containing information about the Buyer.
17. Unpaid Seller’s Rights To Dispose Of Goods
17.1 In the event that:
(a) the Seller retains or regains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment of the Price
in terms of this contract; and
(d) the Seller has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Buyer or has remained
with the Seller, the Seller may dispose of the Goods and may claim from the
Buyer the loss to the Seller on such disposal.
18. General
18.1 If any provision of these terms and conditions shall be invalid, void, illegal or
unenforceable the validity, existence, legality and enforceability of the remaining
provisions shall not be affected, prejudiced or impaired.
18.2 All Goods supplied by the Seller are subject to the laws of Australia and the Seller
takes no responsibility for changes in the law which affect the Goods supplied.
18.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss
and/or expense (including loss of profit) suffered by the Buyer arising out of a
breach by the Seller of these terms and conditions.
18.4 In the event of any breach of this contract by the Seller the remedies of the Buyer
shall be limited to damages. Under no circumstances shall the liability of the Seller
exceed the Price of the Goods.
18.5 The Buyer shall not set off against the Price amounts due from the Seller.
18.6 The Seller may license or sub-contract all or any part of its rights and obligations
without the Buyer’s consent.
18.7 The Seller reserves the right to review these terms and conditions at any time and
from time to time. If, following any such review, there is to be any change in such
terms and conditions, that change will take effect from the date on which the seller
notifies the Buyer of such change.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism,
strike, lock out, industrial action, fire, flood, drought, storm or other event beyond
the reasonable control of either party.
