I/We HEREBY AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS IN RELATION TO THE ACCOMODATION OF CREDIT BY CRAEYE ENTERPRISES PTY LTD ACN 621 280 788 (“the Seller”).
1. Definitions and interpretation
1.1 In these terms and conditions, the following words have the corresponding meaning:
“Business Day” means a day which is not a Saturday, Sunday or public holiday in the location of the Delivery Address and/or the Seller’s Address.
“Customer” means the applicant under this Customer Credit Application or the person or entity buying the Goods and/or Equipment as specified in any invoice, document or Order. If there is more than one Customer, it means a reference to each Customer.
“Customer’s Address for Notices” means the postal and/or email address specified as the Customer’s address for notices on the Customer Credit Application.
“Customer Credit Application” means the application form to which these terms and condition form part.
“Delivery Address” means the address for delivery of the Goods and/or Equipment reasonably nominated in writing by the Customer from time to time, being, at the time of the Customer Credit Application, the address listed on this Customer Credit Application.
“Delivery Date” means the date and/or dates which the Goods and/or Equipment are estimated to be delivered to the Customer by as agreed between the Seller and the Customer.
“Equipment” means display products and/or marketing materials relating to the Goods supplied by or on behalf of the Seller for use by the Customer.
“Goods” means champagne, wine, spirits, beverages and any other goods supplied by the Seller to the Customer at the Customer’s request from time to time.
“Guarantor” means the person named as such in the Customer Credit Application.
“Insolvent” means that a person (including a company) is unable to pay its debts as and when they become due and payable.
“Liquor Licence” means a licence to sell or supply liquor granted by the relevant authority authorised to issue such licence in the State where the Goods have been provided by the Seller to the Customer.
“Minimum Order” means in relation to:
- champagne and wine, an amount not less than twelve (12) 750ml bottles per Order;
- spirits, an amount not less than two (2) 500ml bottler per Order;
- other Goods and/or Equipment, such minimum amounts as nominated in writing by the Seller from time to time.
“Order” means an order or request made by the Customer to the Seller to purchase Goods and/or Equipment for the Price.
“Price” means the price payable by the Customer to the Seller for Goods and/or Equipmentat the rates and amounts determined under Clause 4. The Price does not include any Service Fee.
“Seller” means Craeye Enterprises Pty Ltd ACN 621 280 788.
“Seller’s Address” means33 Riverside Place, Morningside, Queensland 4170.
“Sellers Address for Notices” means PO Box 1602, Capalaba, Queensland 4157 and/or c/- email@example.com.
“Seller’s Invoice” means an invoice issued by the Seller to the Customer with respect of an Order.
“Service Fee” means any additional fee or charge imposed by the Seller for the provision or delivery of Goods and/or Equipment or any additional services or products, including but not limited to freight, storage, shipping, handling, insurance or delivery of Goods and/or Equipment.
“terms and conditions” means these terms and conditions of the Customer Credit Application.
1.2 In these terms and conditions, unless the context otherwise requires:
(a) a reference to a person includes any other entity recognised by law and vice versa;
(b) words importing the singular number include the plural number and vice versa;
(c) words importing one gender include every gender;
(d) a reference to a party includes the parties executors, administrators or permitted assigns, or being a company, its successors or permitted assigns;
(e) a reference to a law includes all regulations or other instruments under and amendments to that law and any other law passed in substitution for that law or incorporating any of its provisions to the extent that they are incorporated;
(f) Every agreement or undertaking expressed or implied by which more one or more persons agree or undertake any obligation or derive any benefit will bind or enure for the benefit of such persons jointly and each of them severally;
(g) “Delivery” of any Goods and/or Equipment shall be taken to occur at the time and on the date the Goods and/or Equipment arrive at the Customer’s Address;
(h) Time shall be of the essence of the obligations of the Customer under these terms and conditions;
(i) clause headings are for reference purposes only.
2. Acceptance of terms and conditions
2.1 The Customer and the Guarantor accept and agree that, notwithstanding anything to the contrary, including any subsequent notification by the Customer following the date of the Customer Credit Application,the terms and conditions apply in respect of each and every Orderand/or the delivery of all Goods and/or Equipmentby the Seller.
2.2 Subject to the written acceptance of an Order by the Seller, the Seller agrees to provide Goods and/or Equipment to the Customer on the terms and conditions.
3. Warranties and Representations
3.1 The Customer and the Guarantor warrant and represent to the Seller that:
- they are authorised and have legal capacity to sign the Customer Credit Application;
- the Customer is authorised and has legal capacity to place each Order;
- they are not insolvent at the time of signing the Customer Credit Application or at the time any Order is placed;
- the Delivery Address (including, without limitation, any amended Delivery Address) is and will be safe and accessible by the Seller on the Delivery Date;
- the Customer holds a current and valid Liquor Licence; and
- the information and details provided to the Seller in Customer Credit Application and subsequently by them are true and correct in all respects.
4. Price and Payment
4.1 Unless otherwise agreed between the parties, upon receipt of an Order, the Seller will provide the Customer with an invoice and the Price payable for the Goods and/or Equipment for the Order shall be the amount indicated on that invoice. Upon sending the invoice, the Seller will supply the Goods and/or Equipment for the Order in accordance with the terms and conditions.
4.2 The Seller reserves the right to change the Price if a variation to an Order or any quotation is requested by the Customer
4.3 The Seller may, in its absolute discretion, require the Customer pay a non-refundable deposit in respect of any Order. The amount and time for payment of any such deposit will be stipulated in the invoice relating to the Order.
4.4 The Price must be paid by the Customer on the date stipulated in the invoice relating to the Order or, failing such stipulation, at the time of Delivery of the Goods and/or Equipment
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card or by any other method as agreed to between the Customer and the Seller from time to time.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price, the Customer must pay to the Seller an amount equal to any GST the Seller must pay for any supply by the Seller under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price.
4.7 In addition the Customer must pay any other taxes and duties (including but not limited to Wine Equalisation Tax (“WET”)) that may be applicable in addition to the Price except where they are expressly included in the Price. For the avoidance of doubt, any WET exemption claims will require a valid tax exemption number form to be provided to the Seller by the Customer.
5. Order Requirements
5.1 Each Order must:
- Specify the Goods which the Customer wishes to purchase from the Seller;
- Specify the quantity of the Goods required. In specifying the quantity of Goods it requires, the Customer must, at a minimum, order the Minimum Quantity of the Goods;
- Specify the Equipment the Customer wishes to order from the Seller, on bailment in accordance with these terms and conditions.
6.1 Unless otherwise agreed by the Parties, on the basis that the Goods and/or Equipmentcan be delivered to the Delivery Address on the Delivery Date, the Seller will insure the Goods and/or Equipment for their replacement value until Delivery.
6.2 Risk of damage to or loss of the Goods and/or Equipment passes to the Customer from the time that the Goods and/or Equipment leaves the Seller’s Address.
6.3 Upon Delivery, the Customer must insure the Goods and/or Equipment for its full replacement value with a reputable insurer. Such insurance policy must note the interest of the Seller. Upon request, the Customer must provide to the Seller sufficient evidence of the insurance policy taken out over the Goods and/or Equipment under this clause 6.3.
6.4 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
6.5 If the Customer requests the Seller to deliver the Goods and/or Equipment and leave the Goods and/or Equipment outside the Delivery Address or to deliver the Goods and/or Equipment to an unattended location, then such Goods and/or Equipment shall be left at the Customer’s sole risk.
7. Delivery of Goods and/or Equipment
7.1 The Customer must take delivery by receipt or collection of the Goods and/or Equipment whenever they are tendered for delivery.
7.2 The Customer may, by way of a written request to the Seller not less than forty-eight (48) hours before a proposed collection date, arrange to collect the Goods and/or Equipment from the Seller’s Address. The time and date of collection will be determined by the Seller in its sole discretion. Nothing in this clause 7.2 requires the Seller to allow the Customer to collect the Good and/or Services and the Seller may to instead elect to deliver Goods and/or Equipment to the Customer.
7.3 At the Seller’s sole discretion, the cost of Delivery is either included in the Price or is in addition to the Price.
7.4 In the event that the Customer is unable to take delivery of the Goods and/or Equipment, or the Seller attempts to but is unable to make Delivery as arranged, then the Seller shall be entitled to charge a reasonable fee for redelivery and/or storage.
7.5 The Seller may deliver the Goods and/or Equipment in separate instalments. Each separate instalment shall be invoiced and paid in accordance with these terms and conditions.
7.6 If an Order is placed with the Seller before 2:00pm on a Business Day, then the Seller will endeavour to deliver Orders:
- For Orders where the Delivery Address is within the Brisbane area, on the next Business Day;
- For Orders where the Delivery Address is outside the Brisbane area, within two Business Days.
7.7 If the Customer requires delivery outside of the Seller’s standard delivery times, the Seller reserves the right to charge an urgent handling fee. Any such urgent handling fee will be determined by the Seller acting reasonably and will dependon the required delivery time, location of the Delivery Address and any other relevant considerations specific to the Customer’s order. The urgent handling fee will appear on the Invoice.
7.8 Any time or date given by the Seller to the Customer is an estimate only. The Customer must accept delivery of the Goods and/or Equipment even if late and the Seller will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
8.1 The Seller and the Customer agree that ownership of the Goodsshall not pass until:
- the Customer has paid the Seller all amounts owing to the Seller; and
- the Customer has met all of its other obligations to the Seller.
8.2 The Seller and the Customer agree that ownership of the Equipment shall not pass to the Customer at any time. Despite anything to the contrary in these terms and conditions, ownership of the Equipment will remain the property of the Seller and the Customer shall remain a bailee of the Equipment and, as a bailee of the Equipment, must comply with the obligations set out in this clause 8 insofar as they relate to a bailee.
8.3 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.
8.4 It is further agreed that:
- Subject to clause 8.2, until ownership of the Goods and passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and/or Equipment and must return the Goods and/or Equipment to the Seller on request and the remainder of this clause 7.4 shall apply;
- the Customer holds the benefit of the Customer’s insurance of the Goods and/or Equipment on trust for the Seller and must pay to the Seller the proceeds of any insurance in the event of the Goods and/or Equipment being lost, damaged or destroyed;
- the Customer must not sell, dispose, or otherwise part with possession of the Goodsother than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goodsthen the Customer must hold the proceeds of any such act on trust for the Seller and must pay or deliver the proceeds to the Seller on demand. The Seller must not sell, dispose of otherwise part with possession of the Equipment;
- the Customer should not convert or process the Goodsor intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Seller and must sell, dispose of or return the resulting product to the Seller as it so directs;
- the Customer irrevocably authorises the Seller to enter any premises where the Seller believes the Goods and/or Equipment are kept and recover possession of the Goods and/or Equipment. The Seller will not be liable for any damage caused to the Delivery Address while recovering the Goods and/or Equipment from the Customer;
- the Customer shall not charge or grant an encumbrance over the Goods and/or Equipment nor grant nor otherwise give away any interest in the Goods and/or Equipment while they remain the property of the Seller;
- the Seller may recover possession of any Goods and/or Equipment in transit whether or not delivery has occurred; and
- the Seller may commence proceedings to recover the Price of the Goods and/or Equipment sold notwithstanding that ownership of the Goods and/or Equipment has not passed to the Customer.
9. Security and Charge
9.1 In consideration of the Seller agreeing to supply the Goods and/or Equipment to the Customer, the Customer charges all of its rights, title and interest in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions including, but not limited to, the payment of any money.
9.2 The Customer indemnifies the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Seller’s rights under this clause 9.
9.3 The Customer irrevocably appoints the Seller and each director of the Seller as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 9 including, but not limited to, signing any document on the Customer’s behalf.
10. Personal Property Securities Act 2009 (“PPSA”)
10.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
10.2 Upon assenting to these terms and conditions in writing, the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or Equipment that have previously been supplied and that will be supplied in the future by the Seller to the Customer.
10.3 The Customer undertakes to:
- promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to;
- register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
- register any other document required to be registered by the PPSA; or
- correct a defect in a statement referred to in clause 10.3(a)(i) or 10.3(a)(ii);
- indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods and/or Equipment charged thereby;
- not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
- not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or Equipment in favour of a third party without the prior written consent of the Seller;
- immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
10.4 The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
10.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
10.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
10.7 Unless otherwise agreed to in writing by the Seller, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
10.8 The Customer must unconditionally ratify any actions taken by the Seller pursuant to this clause 9.
10.9 Subject to any express provisions to the contrary nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions the PPSA.
11. Intellectual Property
11.1 Where the Seller has designed, drawn or developed Equipment or other promotional materials for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Seller.
11.2 The Customer warrants that all designs, specifications or instructions given to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s Order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
11.3 The Customer agrees that the Seller may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Equipment which the Seller has created for the Customer.
12. Defects, Warranties and Returns, Competition and Consumer Act 2010 (“CCA”)
12.1 The Customer must inspect the Goods and/or Equipment on Delivery and must within twenty-four (24) hours ofDelivery notify the Seller in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods and/or Equipment as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Seller to inspect the Goods and/or Equipment.
12.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
12.3 The Seller acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
12.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Seller makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods and/or Equipment. The Seller’s liability in respect of these warranties is limited to the fullest extent permitted by law.
12.5 If the Customer is a consumer within the meaning of the CCA, the Seller’s liability is limited to the extent permitted by section 64A of the CCA.
12.6 If the Seller is required to replace the Goods and/or Equipment under this clause or the CCA, but is unable to do so, the Seller may refund any money the Customer has paid for the Goods and/or Equipment.
12.7 If the Customer is not a consumer within the meaning of the CCA, the Seller’s liability for any defect or damage in the Goods and/or Equipment is:
- limited to the value of any express warranty or warranty card provided to the Customer by the Seller at the Seller’s sole discretion;
- limited to any warranty to which the Seller is entitled, if the Seller did not manufacture the Goods and/or Equipment; or
- otherwise negated absolutely.
12.8 Subject to this clause 12.1, returns will only be accepted provided that:
- the Customer has complied with the provisions of clause 12.1;
- the Seller has agreed that the Goods and/or Equipment is defective;
- the Goods and/or Equipment is returned within a reasonable time at the Customer’s cost (if that cost is not significant); and
- the Goods and/or Equipmentis returned in as close a condition to that in which they were delivered as is possible.
12.9 Notwithstanding clauses 12.1 to 12.8 but subject to the CCA, the Seller shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
- the Customer failing to properly maintain or store any Goods and/or Equipment;
- the Customer using the Goods and/or Equipment for any purpose other than that for which they were designed;
- the Customer continuing the use of any Goods and/or Equipment after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
- the Customer failing to follow any instructions or guidelines provided by the Seller; and/or
- fair wear and tear, any accident, or act of God.
12.10 In the case of second hand Goods and/or Equipment, unless the Customer is a consumer under the CCA, the Customer acknowledges that it has had full opportunity to inspect the second hand Goods and/or Equipment prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Customer acknowledges and agrees that the Seller has agreed to provide the Customer with the second hand Goods and/or Equipment and calculated the Price of the second hand Goods and/or Equipment in reliance of this clause 12.10.
12.11 The Seller may in its absolute discretion accept non-defective Goods and/or Equipment for return in which casethe Seller may require the Customer topay handling fees of up to ten percent (10%) of the value of the returned Goods and/or Equipment plus any freight costs.
12.12 Notwithstanding anything contained in this clause if the Seller is required by a law to accept a return then the Seller will only accept a return on the conditions imposed by that law.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Customer owes the Seller any money the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Seller’s collection agency costs, and bank dishonour fees).
13.3 Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Seller may suspend or terminate the supply of Goods and/or Equipment to the Customer. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
13.4 Without prejudice to the Seller’s other remedies at law, the Seller shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable if:
- any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to make a payment when it falls due;
- the Customer 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 (other than as specified in the amendments to the Corporations Act 2001 (Cth) enacted by Part 2 of the Treasury Law Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth)); or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
14.1 The Seller may cancel any agreement, contract or Order to which these terms and conditions apply or cancel delivery of Goods and/or Equipment at any time before the Goods and/or Equipment are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any money paid by the Customer for the Goods and/or Equipment. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.2 If the Customer cancels delivery of Goods and/or Equipment the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Seller as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.3 Cancellation of orders for Goods and/or Equipment made to the Customer’s specifications, or for items not contained on the stock list, will not be accepted once production has commenced, or an order has been placed.
15. Change in Control
15.1 The Customer shall give the Seller fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause 14.
16. Privacy Act 1988
16.1 The Customer agrees for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Seller.
16.2 The Customer agrees that the Seller may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- to assess an application by the Customer;
- to notify other credit providers of a default by the Customer
- to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
- to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
16.3 The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit pursuant to section 18K(1)(h) Privacy Act 1988).
16.4 The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time):
- the provision of Goods;
- the marketing of Goods and/or Equipment by the Seller, its agents or distributors;
- analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
- enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
16.5 The Seller may give information about the Customer to a credit reporting agency for the following purposes:
to obtain a consumer credit report about the Customer; or
- allow the credit reporting agency to create or maintain a credit information
- file containing information about the Customer.
16.6 The information given to the credit reporting agency may include:
- personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number);
- details concerning the Customer’s application for credit or commercial credit and the amount requested;
- advice that the Seller is a current credit provider to the Customer;
- advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
- that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
- information that, in the opinion of the Seller, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customer’s credit obligations);
- advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once; and/or
- that credit provided to the Customer by the Seller has been paid or otherwise discharged.
17. Promotional Material
17.1 The Seller may send to the Customer such promotional material as the Seller considers relevant to the Customer from time to time to the Customer’s Address for Notices.
17.2 The Customer agrees to accept such promotional material from the Seller and will not unsubscribe from any electronic communications the Customer receives from the Seller.
18.1 These terms and conditions and any contract to which they apply shall be governed by the laws of the state of in which the Delivery Address is located and each party submits to the non-exclusive jurisdiction of the courts in that State.
18.2 A notice, demand, waiver, approval, communication or other document in connection with this Customer Credit Application shall be served to the Customer’s Address for Notices or the Seller’s Address for Notices, unless otherwise advised in writing.
18.3 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.4 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
18.5 The Customer agrees that the Seller may amend these terms and conditions at any time. If the Seller makes a change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Seller to provide Goods and/or Equipment to the Customer.
18.6 The Seller may elect not to accept or fill any Order or part thereof made by the Customer under this Customer Credit Application at its sole discretion and, if the Seller makes such an election then the Seller will not be liable for any loss or damage suffered by the Customer as a result of the Seller’s election.
18.7 The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision. 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.
18.8 Subject to clause 12, the Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions (alternatively the Seller’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods and/or Equipment included in the Order).
18.9 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
18.10 The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.11 These terms and conditions shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Seller.
18.12 These terms and conditions constitute the entire agreement between the parties and supersedes all prior negotiations, agreements or representations.
19. GUARANTEE AND INDEMNITY
19.1 For the purposes of this Clause 19 “the Consideration” means the Seller, at the Guarantor’s request (which request is confirmed by the execution of these Customer Credit Application by the Guarantor), executing this Customer Credit Application, and any other consideration given or to be given by the Seller to, for the benefit of or at the request of either of the Customer or the Guarantor;
19.2 For the Consideration, the Guarantor guarantees to the Seller:
- the performance and observance by the Customer of all of the Customer’s obligations expressed or implied in these terms and conditions and any other agreement subsequently entered into between the Customer and the Seller; and
- the payment of all moneys payable by the Customer to the Seller under or arising out of this Customer Credit Application and any trade contract or other agreement subsequently entered into between the Customer and the Seller including (without limitation) fees, charges, expenses, disbursement, amounts indemnified and damages resulting from breach of this Customer Credit Application or any other agreement subsequently entered into between the Customer and the Seller
19.3 For the Consideration, the Guarantor indemnifies and shall keep indemnified the Seller against any loss suffered by the Seller as a result of any failure by the Customer to:
- perform and observe its obligations expressed or implied in this Customer Credit Application or any other agreement subsequently entered into between the Customer and the Seller; and
- promptly pay all moneys payable by the Customer to the Seller under or arising out of this Customer Credit Application and any other agreement subsequently entered into between the Customer and the Seller including (without limitation) fees, charges, expenses, disbursement, amounts indemnified and damages resulting from breach of this Customer Credit Application.
19.4 If any of the provisions of this Customer Credit Application or any other agreement subsequently entered into between the Customer and Seller are not enforceable by the Seller against the Customer for any reason (including, without limitation, any lack of capacity on the part of the Customer, illegality, improper execution or authorisation, disclaimer of this Customer Credit Application by a liquidator or trustee in bankruptcy) the Guarantor, for the Consideration, indemnifies and shall keep indemnified the Seller against any loss suffered by the Seller which (without limitation) will include all moneys which would have been payable by the Customer had such agreement been fully enforceable against the Customer.
19.5 The liability of each person comprising the Guarantor under the guarantee and indemnity in this Clause 19 shall not be affected by anything, and in particular (without limitation) shall not be affected by:
- this Customer Credit Application being or becoming void or voidable;
- the termination of this Customer Credit Application;
- the death, mental incapacity, winding up, liquidation, insolvency, assignment of property, bankruptcy, assignment for the benefit of creditors, arrangement with creditors, reconstruction, official management, receivership, striking off or other demise of the trade contractor or any other person comprising a Guarantor;
- The Seller becoming a party to or bound by any compromise, assignment of property, scheme of arrangement, composition of debts or scheme of reconstruction by or relating to the trade contractor or any other person comprising a Guarantor or any other person;
- will, if expressly required by the Seller, prove or claim in that bankruptcy, assignment, arrangement, winding up, receivership or other demise of the Customer,
and any amount received by the Guarantor from any distribution, dividend or payment shall be received and held by the Guarantor in trust for the Seller and paid on demand to the Seller in reduction of the amount owing by the Guarantor to the Seller.
19.8 The Seller may prove for the whole amount owing by the Customer under this Customer Credit Application in any payment to creditors arising out of the death, bankruptcy, assignment for the benefit of creditors, arrangement with creditors, winding up or other circumstances relating to the trade contractor or a Guarantor. No deduction need be made in such proof in respect of the Seller’s receipt of amounts in reduction of the amount owing by reason of receipts from another source, such amounts being regarded for all purposes as payments in gross until payment of the whole of the amount of the moneys owing by the Customer is received by the Seller. However, the total amount recoverable by the Seller shall not exceed the total amount owed by the Customer under this Customer Credit Application.
- a claim is made that any payment or transaction affecting the moneys guaranteed and indemnified under this Clause 19 is void or voidable under any law relating to bankruptcy or the protection of debtors; and
- that claim is upheld, conceded or compromised,
The Seller will immediately become entitled against the Guarantor to all rights in respect of such moneys as it would have had if the payment or transaction (or so much of it as is held or conceded to be void or voidable or as is foregone on compromise) had not taken place. In any such case, the Seller shall also be entitled to recover from the Guarantor all costs and expenses (including legal costs and expenses on a full indemnity basis) incurred by the Seller in or in connection with any negotiations or proceedings relating to such claim.
19.10 Any compromise or concession made by the Seller in good faith shall not be open to dispute by the Guarantor.
19.11 If the Guarantor is or includes a corporation or trustee, that corporation or trustee warrants in favour of the Seller that it has full and unrestricted power to covenant, agree and indemnify as contained in this Customer Credit Application and to execute this Customer Credit Application.
19.12 Notwithstanding previous actual service on the Guarantor, any notice or other document or writing or any originating process or any other document in proceedings served, delivered or given in accordance with the provisions of this Customer Credit Application on or to the Customer but addressed to the Guarantor, shall be deemed to have been served on delivered or given to the Guarantor for all purposes.