1.1 The terms of payment are strictly thirty (30) days (or such other period as nominated by the supplier herein) from the end of the month of the date of the invoice. Direct Plasterboard Outlet Pty Ltd ABN 26 150 449 282 and its related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, unilaterally vary the terms of trade in its absolute and unfettered discretion.
1.2 Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier from time to time, the Supplier will be entitled to charge an administration fee of:
(i) 10 percent of the amount of the invoice payable; and
(ii) a further 10 percent per annum payable per year, or part thereof, until payment by the Applicant.
1.3 In the event that the Supplier processes or accepts payment of any amount from the Applicant by credit card, the Applicant/cardholder shall not assert that any such transaction was an unauthorised.
1.4 The Applicant must advise the Supplier in writing of any changes in its business structure as shown in this application within two (2) business days of such change occurring. The person or entity, shown in the Supplier’s records as the Applicant, remains liable to the Supplier for Goods supplied until the Supplier has accepted a fresh credit application from the person or entity operating the new business structure. If the Applicant fails to observe any of the above terms or has made a misrepresentation to the Supplier or given information which is untrue, credit facilities may be withdrawn, and all charges made to the Applicant account will become due immediately.
2.1 Unless stated otherwise prior to delivery, DPO will leave goods on site and delivery shall be considered completed, with or without the need of a signature as proof of delivery.
2.2 Delivery to all unattended Sites are the responsibility of the Applicant.
2.3 Any claims by the Applicant that any goods supplied by the Supplier are defective, or not of merchantable quality, must be made by the Applicant to the Supplier in writing within seven (7) days of delivery or pick up of the goods. Any claims not made in writing and within seven (7) days of delivery or pick-up of the goods, will not be accepted by the Supplier.
2.4 Stock Items may be returned, however such returns will attract a restocking fee.
2.5 Products specifically ordered in for you and or your job are non-returnable.
The Applicant acknowledges and agrees that:
(i) any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier; and
(ii) this agreement is governed by and interpreted by the laws of New South Wales and submits to the non-exclusive jurisdiction of the courts of New South Wales.
4.1 In order to secure any and all of its past, present and future obligations owed to the Supplier, the Applicant charges, by way of a charge, in favour of the Supplier all current and future rights, title and interest in any current and future real property.
4.2 In order to secure any and all of its past, present and future obligations owed to the Supplier, the Applicant charges, by way of a charge, in favour of the Supplier all current and future rights, title and interest in any current and future personal property.
4.3 The Applicant appoints as its duly constituted attorney the Supplier’s company secretary from time to time to execute in the Applicant’s name any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.
4.5 Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over or in respect of real or personal property, those charges, mortgages or other security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue and co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Applicant under this agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
4.6 The Applicant agrees to deliver to the Supplier, within seven (7) days of demand, a properly executed Memorandum of Mortgage in a form approved by the Supplier and which includes a covenant providing that interest may be charged on all outstanding monies at the rate of 1% per month calculated daily on any monies due but unpaid. Such interest will be calculated from the due date of payment.
4.7 The Applicant 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 Applicant(s) property or properties shall not be challenged by the Applicant/Buyer in any way whatsoever, and the Buyer agrees not to take any steps to file a “Lapsing Notice” via the Land Titles Office to have the Caveat removed, until such time the Buyer has paid all monies owing by it to the Supplier as claimed from time to time.
5.1 Words and phrases in this agreement shall have the same meaning as in the PPSA, unless otherwise indicated.
5.2 The Applicant hereby:
(i) grants to the Supplier a Security Interest in any goods supplied by the Supplier to the Applicant and in the proceeds of sale in respect of those goods;
(ii) agrees that if any goods supplied by the Supplier to the Applicant become part of a product or mass, the Security Interest continues in the product or mass in accordance with Part 3.4 of the PPSA;
(iii) agrees that the Security Interest secures all or part of the purchase price of the goods;
(iv) agrees that the Security Interest arising under any retention of title is a ‘purchase money security interest’ (PMSI) to the extent it can be under section 14 of the PPSA;
(v) agrees that the Supplier may register its Security Interest as a PMSI on the PPSR; and
(vi) agrees to do all things and execute all documents reasonably required by the Supplier to ensure that it acquires a Perfected Security Interest in the goods under the PPSA.
5.3 To the maximum extent permitted, the Applicant waives any and all of its rights to receive any notices, including but not limited to receipt of a verification statement, that may otherwise be required to be given by the Supplier to the Applicant pursuant to the PPSA, but for this waiver. Nothing in this clause shall prevent the Supplier from issuing any such notices, at its discretion.
5.4 The Applicant waives any rights it has pursuant to section 115 of the PPSA upon enforcement.
5.5 The Applicant agrees that it shall:
(i) refrain from exercising any rights pursuant to section 275 of the PPSA;
(ii) refrain from entering into any agreement which permits any other person to register any Security Interest in respect of the goods, the proceeds of sale of the goods, or any amounts owed in respect of the goods without the Applicant’s prior written consent;
(iii) immediately notify the Applicant of any change to it that would require a Financing Change Statement to be lodged; and
(iv) refrain from registering a Financing Change Statement, or making a demand to alter any Financing Statement registered by the Applicant pursuant to section 178 of the PPSA, without prior written consent.
5.6 The Applicant agrees that, where the Supplier has rights in addition to those under Part 4 of the PPSA, those rights will continue to apply.
5.7 The Applicant irrevocably grants to the Supplier the right to enter upon the Applicant’s property or premises, without notice, and without being in any way liable to the Applicant or to any third party, if the Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and the Applicant shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.
7.1 Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it.
7.2 Placement of an order, either verbally or in writing, will imply acceptance of these terms and conditions.
8.1 Risk in any goods supplied by the Supplier to the Applicant passes on delivery or collection.
8.2 Title in any goods supplied by the Supplier to the Applicant does not pass to the Applicant until the Applicant has made payment in full of all monies owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
8.3 Until payment in full has been made to the Supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier and will not mix the goods with other similar goods.
8.4 The Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Supplier, the Applicant will sell as agent and bailee for the Supplier and the proceeds of sale of the goods will be held by the Applicant on trust for the Supplier absolutely.
8.5 The Applicant’s indebtedness to the Supplier, whether in full or in part, will not be discharged unless and until the funds held on trust are remitted to and received by the Supplier.
8.6 The Applicant agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, with or without prior notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicant’s possession, custody or control when payment is overdue.
8.7 The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under this clause 8. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
8.8 The Applicant agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicant hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.
The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this agreement or not. Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim, loss, damage, charge or expense that the Supplier may suffer or incur, whether directly or indirectly, as a consequence of any failure by the Applicant to comply with its obligations owed to the Supplier in accordance with this, or any other agreement. This indemnity includes but is not limited to any legal fees and expenses the Supplier incurs to enforce its rights, on solicitor/client basis.
The Applicant undertakes to comply with any request by the Supplier to provide further information for assessing the Applicant’s creditworthiness, including an updated credit application
If the Applicant is a corporation (except for a public listed company):
(i) it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity; and
(ii) the Applicant warrants that any person(s) that have signed this agreement are duly authorised by the Applicant to do so and to bind the Applicant. The Applicant also warrants that all its directors will enter a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that the Applicant
(i) enters into this agreement in both its capacity as trustee and in its personal capacity;
(ii) has the right to be indemnified out of trust assets;
(iii) has the power under the trust deed to sign this agreement;
(iv) will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier; and
(v) must give the Supplier a copy of the trust deed upon request.
A waiver of any provision of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing.
15.1 The Applicant must pay for all costs incurred by the Supplier relating to any failure by the Applicant to comply with its obligations owed to the Supplier in relation to this, or any other agreement. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
15.2 The Applicant will pay the Supplier’s costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including collection costs, debt recovery fees and legal costs on a solicitor/client basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
15.3 The Applicant acknowledges and agrees that payments by the Applicant will be applied by the Supplier as follows:
(i) Firstly, in payment of all collection costs and legal costs;
(ii) Secondly, in payment of any interest incurred in accordance with clause 16; and
(i) Thirdly, in payment of the outstanding invoice(s).
15.4 In circumstances where the Supplier seeks to enforce its rights under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Applicant will be allocated in a manner at the Suppliers absolute and unfettered discretion,.
15.5 To the extent that payments have been allocated to invoices by the Supplier in it’s business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Supplier’s absolute discretion, including in a manner inconsistent.
15.6 Payments allocated (and/or reallocated) will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.
16.1 The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
16.2 If because of:
(i) any legislation becoming applicable to the subject matter of this agreement; or
(ii) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration; the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.
Any amount not paid by Applicant to the Supplier in accordance with this Agreement will, at the discretion of the Supplier, be subject to interest charged up to 1% per month calculated daily on any monies due but unpaid. Such interest will be calculated from the due date of payment. The parties agree that this amount is a genuine pre-estimate of the Supplier’s damages and is not a penalty.
18.1 All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding.
18.2 Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
19.1 The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier’s control.
19.2 In relation to the supply of goods, the Supplier’s liability is limited to:
(i) replacing the goods or supplying similar goods;
(ii) repairing the goods;
(iii) providing the cost for replacing the goods or for acquiring equivalent goods; and
(iv) providing the cost for having the goods repaired.
19.3 In relation to the supply of services, the Supplier’s liability is limited to:
(i) supplying the service again; or
(ii) providing for the cost of having the services supplied again.
19.4 The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant.
19.5 Nothing in this agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application of the Australian Consumer Law, or any other relevant state or Federal Law, in relation to the supply of any goods and/or services which by law cannot be excluded, restricted or modified.
19.6 Goods will be supplied on the Supplier’s then current terms and conditions of sale as detailed on the invoice or docket for Goods supplied with any alterations as may be notified to the Applicant at point of sale. The credit allowed under this application is limited to the higher of the amount advised by the Supplier or the amount of credit extended.
19.7 The applicant gives consents to DPO and related entities to send marketing material in printed or electronic format to the applicants.
If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms. If any part of this agreement is invalid or unenforceable, that part is deleted, and the remainder of the agreement remains effective.
21.1 The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.
21.2 Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
21.3 Variations requested by the Applicant will only be binding upon the Supplier if they are accepted in writing.
22.1 This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. Save for the provisions of clause 4.5 above, all previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
22.2 Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.
The Applicant acknowledges, agrees and accepts that it has obtained, or has had the opportunity to obtain, legal advice in relation to the terms of this agreement.
The Applicant agrees to the terms of the Privacy Act 1988 authorisation contained in this document.
General information about privacy and the operation of the Privacy Act 1988 (the “Act”) can be found at the Office of the Australian Information Commissioner (OAIC) website at www.oaic.gov.au/privacy/about-privacy along with the Australian Privacy Principles (“APPs”).
To enable the Supplier to assess the credit application or to review any existing credit, the Applicant and Guarantors authorise the Supplier to obtain:
(i) from a credit reporting agency, a credit report containing personal information about the Applicant and Guarantors in relation to credit provided by the Supplier ;
(ii) a report from a credit reporting agency containing personal information about the Applicant and the Guarantors ; and
(iii) a report containing information about the Applicant’s and the Guarantors’ commercial activities or commercial credit worthiness from a business which provides information about the commercial credit worthiness of a person or an entity in relation to credit provided by the Supplier.
The Applicant and Guarantors authorise the Supplier to provide certain personal information about the Applicant and Guarantors to credit reporting bodies and other credit providers, which includes but is not limited to:
(i) The fact that application for credit has been made;
(ii) The fact that the Supplier is a credit provider to the Applicant;
(iii) Payments which become overdue more than 60 days;
(iv) Advice that payments are no longer overdue;
(v) Cheques drawn by the Applicant more than $100 that have been dishonoured more than once;
(vi) In specified circumstances, that in the opinion of the Supplier the Applicant has committed a serious credit infringement;
(vii) That the credit provided to the Applicant by the Supplier has been discharged.
The Applicant and Guarantors authorise the Supplier to give and obtain from credit providers named in this credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Applicant’s credit arrangement. The Applicant and Guarantors acknowledge that the information can include any information about the Applicant’s/Guarantors’ credit worthiness, credit standing, credit history or credit capacity that credit providers can give or receive from each other under the Privacy Act.