Penetron Australia Terms and Conditions of Sale
In these standard terms and conditions of sale:
‘Account customers’ means customers of Penetron Australia who have applied for a credit account which Penetron Australia has accepted.
‘Agreement’ or “contract” means Penetron Australia agreement with you to supply goods and/or services either pursuant to Penetron Australia Commercial Credit Application Agreement including the Guarantee and Indemnity contained therein or otherwise;
‘Business Day’ means any day on which banks in the capital city of the State which governs the law of this Agreement are open;
“Collateral” has the same meaning as per section 10 PPS Act;
‘Corporations Act’ means the Corporations Act 2001;
‘Cost of Goods and/or Services’ means the amount payable to Penetron Australia by the Customer and if no amount has been agreed in a quotation then the amount determined in accordance with the Company’s price ruling (see Appendix “A”) at the date the Goods are delivered or Services rendered, which amount shall be exclusive of GST and all customs duty, excise duty and governmental imposts on export sales on an FOB, CIF or C & F basis.
‘Customer’ or ‘Applicant’ or ‘you’ or ‘your’ or ‘them’ means the person(s), company or business entity, their successors and assigns who is a customer of Penetron Australia for the supply of goods and/or services and includes any Guarantors of the Customer;
‘Delivery’ means the loading of goods upon a transport vehicle for the purpose of delivery to the customer;
‘Goods’ or ‘Services’ means goods for sale, including property and/or services offered by Penetron Australia to Customers;
‘GST’ means the Goods and Services Tax levied on any supply made under this Agreement under the A New Tax System (Goods and Services Tax) Act 1999 or any similar tax resulting in an increase in the tax payable on the supply of goods by Penetron Australia to the Customer;
‘Guarantor(s)’ means the person(s), company or business entity, their successors and assigns names in the Guarantee and Indemnity;
‘Penetron Australia’ means Concrete Durability And Waterproofing Solutions Pty Ltd ACN 123 938 232 Trading As Penetron Australia ABN 84 123 938 232 their successors and assigns and any and all of their subsidiaries as defined in Section 9 of the Corporations Act;
“PMSI” means Purchase Money Security Interest;
“PPS Act” means Personal Property Securities Act 2009 (Cth);
“PPSR” means Personal Property Security Register;
“Property” has the same meaning as per section 10 of the PPS Act;
“Security Interest” has the same meaning as per section 12 of the PPS Act; and
Words importing the singular shall include the plural and vice versa. Words importing any gender shall include every gender.
- Penetron Australia offers to supply goods and/or services to you only on the following terms which apply to account customers and other customers with the exception of clause 6 which applies to account customers only.
- Please note that no Penetron Australia employee has any authority to accept any terms you may suggest that are different from the following terms.
- If you accept a Penetron Australia quotation to supply goods and/or services both Penetron Australia and you are bound by this contract, irrespective of any terms or conditions which may be included in a purchase order and purporting to apply to the transaction.
- You acknowledge that you rely on these terms only and that you have not relied on any representations made to you prior to or at the time of entering this contract.
- Delivery and Risk
- Please note that Penetron Australia will deliver the Goods to your warehouse or other location nominated in writing by you unless you notify Penetron Australia in writing that you wish to take delivery from Penetron Australia’s warehouse. You must make all arrangements necessary to take delivery of the Goods whenever they are tended for delivery.
- You agree that Penetron Australia is not a common carrier. Delivery of the Goods to a carrier, either named by you or failing such naming to a carrier at the discretion of Penetron Australia, for the purpose of transmission to you is deemed to be delivery of the Goods to you.
- You acknowledge that the Goods may be delivered by instalment and each instalment shall be deemed to be sold under a separate contract. Failure to deliver an instalment shall not entitle you to rescind or repudiate any contract with Penetron Australia.
- You agree that delivery of the Goods to a third party nominated by you is deemed to be delivery to you.
- You agree that Penetron Australia will not be liable for any loss or damage whatsoever due to failure by Penetron Australia to deliver the Goods or any of them promptly or at all.
- Upon delivery to you, all risk in the Goods is yours.
- Penetron Australia Obligations to you
- Penetron Australia agrees to supply the goods and/or services specified by you.
- Penetron Australia agrees to use its best endeavours to supply the goods and/or services within the time specified by you but Penetron Australia will not be liable in any way if the goods and/or services are not supplied within that time.
- Penetron Australia agrees that any goods delivered become your property when you have paid for them in full in cleared funds.
- Penetron Australia promises that the goods and/or services are fit for the purpose that the goods and/or services are generally used for and any other special purpose you have specified in writing to Penetron Australia;
- Penetron Australia promises that the goods and/or services are of merchantable quality.
- You may ask Penetron Australia to cancel this contract at any time but not any order that you have already placed for goods and/or services. Penetron Australia will consider your request when you agree to pay for all monies due to Penetron Australia under the contract.
- Penetron Australia will comply with the Privacy Act including the Australian Privacy Principles.
- Your Obligations
- You agree to pay for the goods and/or services and any GST immediately upon receipt of a quotation and
acceptance of your order from Penetron Australia or as otherwise specified and agreed with Penetron Australia. If you are an account customer you agree to pay for the goods and/or services and any GST within 30 days from the month in which you receive a statement of account from Penetron Australia, whether or not the goods and/or services have been supplied within the time specified by you. Time is of the essence for the performance of your obligations including payment which means you must pay all tax invoices and statements of account received on time.
- You agree to pay interest on all overdue monies at 2% per month until payment is received in full. All payments received will be credited first against accrued interest.
- You agree to accept the goods and/or services supplied, whether or not the goods and/or services have been supplied within the time specified by you.
- You agree that in relation to any consignment stock the terms of this agreement apply and you will take all possible precautions to ensure that no deterioration occurs in consignment stock and shall inform Penetron Australia immediately should so occur.
- You agree that you will not without the prior written consent of Penetron Australia, (i) Repackage any goods or reproduce any artwork on the packaging of any goods; and (ii) Reproduce any trademark appearing on any goods or the packaging of any goods.
- You agree to a security deposit for any returnable containers and pallets which are part of any Goods delivered, which are so marked as “returnable”. The containers and pallets remain the property of Penetron Australia and you must return them, undamaged, to Penetron Australia within 30 days of delivery. You indemnify Penetron Australia for the full cost of new containers and pallets that you do not return or exchange in good order and condition to the location nominated by Penetron Australia.
- You agree that you are responsible for all health and safety laws and regulations in relation to the Goods, in particular in relation to storage, handling and use of the Goods. In the event that Penetron Australia provides information to you in relation to potential hazards of the Goods you agree to make sure that such information shall be bought to the attention of your employees, agents, sub-contractors, visitors and customers.
- You agree that Penetron Australia retain title to any goods until you have paid Penetron Australia with cleared funds, GST inclusive for such goods.
- You agree to store the goods which have not been paid for separately; keep separate records in relation to the proceeds of the sale of any goods which have not been paid for, bank the proceeds of any such sale into a separate account and immediately thereafter remit such funds to Penetron Australia and if any goods are used in the making of any new object or if the goods in any way whatsoever become incorporated into any other product, you will record the value. If the goods so used or incorporated in relation to each unit of finished product then upon sale of any unit of finished product you will immediately remit that amount from the proceeds of sale to Penetron Australia if you have not previously paid in full for the goods.
- You agree to assign (and do so assign) to Penetron Australia any right of action against any third party purchaser arising under any sale of goods that have not been paid for, in circumstances where you have not been paid in full for all such goods delivered or incorporated into any other product.
- You agree that if you have not paid for any goods in cleared funds at the time you agree to do so in addition to all other rights Penetron Australia has against you, you authorise Penetron Australia through its agents to enter the premises where the goods are stored and take possession of them. You agree to hold Penetron Australia harmless against any legal liability to any person arising from it exercising its right to take possession of the unpaid goods.
- If you have breached this contract then you agree to pay all legal or other costs incurred by Penetron Australia in respect of the breach of this contract on an indemnity basis and you further agree to pay any legal or other costs incurred by Penetron Australia on an indemnity basis for the collection of monies which become overdue including the costs of lodging, enforcing and withdrawing any caveat or caveats against real property owned by you or any guarantor in any Land Titles Office in any State or Territory of Australia.
- Upon Penetron Australia request, from time to time, you must provide to Penetron Australia, information in the form and for the period required by Penetron Australia, in relation to your financial position, including a balance sheet, profit and loss statement and cash flow statement and where the customer is a corporation, and information in relation to any guarantors.
- If you want to make any claim for defective goods, incorrect charges, non-delivery of goods or damages for breach of contract you must:
(a) Make the claim in writing and notify Penetron Australia within seven (7) days of the date of supply of the goods and/or services.
(b) Make the claim before you have incorporated any goods delivered into any other goods or products.
You agree that if you do not make the claim as above then you accept that the goods and/or services supplied were of merchantable quality and fit for the purpose for which they were required and correctly charged and delivered. Penetron Australia liability will in any event be limited to exchanging any goods delivered or rendering the services again and in return for payment to Penetron Australia of the cost price for such delivery or for such services rendered.
- Penetron Australia need not accept the return of goods or give credit where the goods are made to your specification.
- Penetron Australia liability for damages for any breach of contract or damage howsoever arising (including, without limitation, negligence) is limited to the price of the goods and/or services that you agreed to pay under this contract, GST inclusive.
- Penetron Australia will not be liable for the costs or damages incurred as a result of the removal of the goods after installation where you have installed the goods incorrectly; or installed the goods and failed to give Penetron Australia seven (7) days’ written notice of any required work for rectification of any faults.
- Except as provided above, Penetron Australia will not be liable(including but not limited to liability in negligence) to any person for any loss or damage consequential or otherwise howsoever suffered or incurred by any such person in relation to the Goods and/or services and without limiting the generality thereof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, breakdown, defect or deficiency of whatsoever nature or kind of or in the goods and/or services.
- Nothing herein affects any statutory rights that you have that cannot be excluded and, if there is an inconsistency between the above terms and your statutory rights which cannot legally be excluded, then those rights will prevail to the extent of the inconsistency. If any clause of this contract is void or otherwise invalid then that clause shall be severed from the contract without effect to the remaining clauses of the contract.
- You agree that you will have no right to deduct or set-off any monies owed by you to Penetron Australia, unless you agree in writing to allow such a deduction or set-off.
- Account customers
- The terms in this clause apply to account customers in addition to the other terms of this contract.
- You may obtain goods or services from Penetron Australia on credit up to the amount of your credit limit authorised by Penetron Australia upon acceptance by Penetron Australia of your application for credit. Penetron Australia reserves the right to refuse to supply goods and/or services on credit and may (in its discretion) cancel all back orders or suspend the provision of credit in the event of breach of any term of this Agreement or if you exceed the credit limit.
- You remain liable to pay all amounts due to Penetron Australia regardless of whether you have exceeded your credit limit.
- You must pay your account within Penetron Australia 30 days trading terms otherwise your credit facilities may be suspended or withdrawn without prior notice and upon any subsequent resumption of such facilities these terms and conditions shall apply to such further facilities.
- You hereby charge in Penetron Australia’s favour all of your estate and interest in any real and personal property that you own either beneficially and/or as trustee of any trust at present and in the future with due payment to Penetron Australia of all monies that may become payable by you by virtue of this contract or otherwise arising from Penetron Australia providing credit to you and you irrevocably appoint Penetron Australia directors, secretaries, employees or solicitors as your duly constituted attorney to execute in your name, and as your act and deed, any real property mortgage, PMSI or consent to any caveat Penetron Australia may choose to lodge against real property that you may own in any Land Titles Office in any State or Territory of Australia even though you may not have defaulted in carrying out your obligations.
- You hereby charge in Penetron Australia favour all monies due and payable to you under any head-contract held by you in respect of which you purchased goods from us and you hereby agree that Penetron Australia will be entitled to all rights, powers and remedies conferred upon sub-contractors under any legislation in any State or Territory in Australia as if all monies due and owing to you were monies due and owing under a sub-contract.
- Where the Applicant is a corporation, the personal guarantees of all of its directors are required.
- Should you be advised by Penetron Australia in writing that you are entitled to a settlement discount, payment must be made by you to Penetron Australia not later than the last working day of the month following the month a statement of account is issued i.e. June statement invoices are due the last working day of July (whether or not the goods and/or services have been supplied within the time specified by you).
- In practice, a settlement discount should be deducted by you at the time of payment, provided that payment is received by Penetron Australia in accordance with their settlement discount policy (which may be revised by Penetron Australia from time to time). For the avoidance of any doubt, a settlement discount cannot be applied retrospectively and can only be applied in the month that payment is made in accordance with Penetron Australia settlement discount policy.
- Personal Property Security
- You acknowledge that this Agreement is a Security Agreement for the purposes of the PPS Act that the goods referred to in this contract are commercial property for the purpose of the PPS Act.
- You consent to Penetron Australia registering its security interest on the PPSR;
- You consent to Penetron Australia applying any monies received, firstly, against Penetron Australia costs and disbursements in recovering such monies on a full indemnity basis, secondly against any interest accrued and finally, against any amount due and agree to the debiting of your account with Penetron Australia of the cost of registration of Penetron Australia security interest and all other associated costs with perfection and enforcement of such security interest on an indemnity basis.
- So far as permitted by Section 107 of the PPS Act, you will have no rights under Sections 114, 120 and 113 of the PPS Act including the right to receive any notices.
- You waive your rights to receive a verification statement in respect of any financing statement or financing change statement registered by Penetron Australia.
- You agree to Penetron Australia exercising its rights under Sections 109 and 120 concurrently and to retaining any repossessed equipment immediately so that Penetron Australia rights under Section 123 of the PPS Act shall become effective immediately upon repossession.
- You agree that repossession and retention of the goods under Sections 120-123 will only partially satisfy your debt to Penetron Australia at the date of repossession and the repossession and retention will immediately extinguish any rights and/or interest the Customer has in the goods.
- For the avoidance of any doubt, the parties acknowledge and agree that it is their intention that the agreement between them is one continuing agreement and not separate agreements based on each purchase order. The security interest created by this agreement is in respect of all goods supplied.
- Service of Process
- You agree that service of legal process may be made by prepaid post to your address as provided to Penetron Australia or such other address as may be notified in writing by you and that service shall be deemed to have been effected 2 business days after the date of posting.
- Electronic Communication
- By visiting Penetron Australia website or sending e-mails to Penetron Australia, you are communicating with Penetron Australia electronically and you consent to receive communications from Penetron Australia electronically. You also agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing.
- Penetron Australia has made all reasonable efforts to ensure that all information provided on Penetron Australia website is accurate at the time of inclusion but makes no representation or warranties, express or implied, except as imposed by law, regarding the information provided on the website, including any hypertext links or any other items used either directly or indirectly from the website and reserves the right to make changes and corrections at any time without notice.
- Penetron Australia takes no responsibility for and does not endorse, sponsor or recommend the contents, accuracy or performance of any links attached to the website. Penetron Australia accepts no responsibility for any inaccuracies or omissions in the website and any decisions based on information contained in the website are solely your responsibility.
- Penetron Australia accepts no liability for any direct, indirect, special, consequential or other losses or damages of whatsoever kind arising out of access to, or the use of the website or any information contained therein.
- Where you are trustee of a trust, you warrant that all materials ordered from Penetron Australia are for the purposes of the trust; that the trustee is entitled to have resort to the trust assets to satisfy any debts owing to it; that the trustee’s right of indemnity against the trust or the trust fund is not excluded and that you will not release that right of indemnity without Penetron Australia prior written consent.
- The contract for sale of any goods and/or services supplied is made in the State from which they are supplied and the parties agree to submit all disputes arising between them to the registry of any Court as is competent to hear the matter in the capital city of the State or Territory in which the supply was made by Penetron Australia.
- If any provision of this contract is unenforceable in accordance with its terms, other provisions which are self sustaining are, and continue to be enforceable in accordance with their terms.
- A provision of this agreement or a right created under it may not be waived except in writing, signed by the party to be bound. No waiver of any breach will be construed to be a waiver of any subsequent breach of the same or any other provision.
- It is agreed that upon Penetron Australia approval and acceptance of this Application a legally binding agreement will be formed between the Applicant and Penetron Australia.