1. The terms of payment are strictly thirty (30) days (or such other period as nominated by the supplier herein) following the end of the month in which the goods were supplied and payment is due and payable on that date. R F Industries Pty Ltd ABN 11 001 695 512 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.
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 shall be entitled to charge an administration fee of 10 percent of the amount of the invoice payable per year, or part thereof, from the date the goods or services were supplied (and not the day when the Supplier’s invoice was payable) until payment by the Applicant.
Duration of quotations
3. Unless previously withdrawn, the Supplier’s quotations are open for acceptance within the period stated in them or, when no period is stated, within 30 days only after its date.
4. The Supplier reserves the right to refuse any order based on a quotation within seven days after the receipt of the order.
5. Only payment by Cash , Direct Deposit, MasterCard, Visa, American Express, cheque or money order will be accepted by the Supplier, unless otherwise agreed.
6. If any cheque, credit card or other form of payment issued by the Applicant or by any third party in payment for goods is dishonoured, the Supplier:
(a) may refuse to supply any further goods (whether or not the Supplier is to make any further deliveries of goods) until satisfactory payment is received in full; and
(b) is entitled to treat the dishonour of the Applicant’s payment as a repudiation of this application for commercial credit and to elect between terminating the contract or affirming it, and in each case, claiming and recovering compensation for loss or damage suffered from the Applicant.
7. The Supplier may, at its discretion, require payment by means of an irrevocable letter of credit or bank guarantee in favour of the Supplier established by and with a bank in such form as is approved by the Supplier in writing, for goods ordered by the Applicant and delivered or to be delivered by the Supplier.
8. If the form of payment is an irrevocable letter of credit, that credit must be issued under and be governed by the International Chamber of Commerce Uniform Customs & Practice for Documentary Credits 1993 (UCP 500).
9. Any letter of credit or bank guarantee must be drawn so that it is payable in full not later than 30 days after written advice that goods subject of any order by the Applicant have been delivered by the Supplier in accordance with that order.
10. The Applicant must advise the Supplier by facsimile, email or letter of the relevant payment details not later than 15 days prior to the scheduled delivery date of the goods.
11. The Applicant acknowledges and agrees that this agreement shall be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
12. The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
13. The parties to this agreement submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
14. The Applicant charges in favour of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
15. The Applicant charges in favour of the Supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
16. The Applicant appoints as its duly constituted attorney the Supplier's company secretary from time to time to execute in the Applicant's name and as the Applicant's act and deed 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.
Purpose of credit
17. 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.Formation of contract
Formation of contract
18. Quotations made by the Supplier shall 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. Only written acceptance by the Supplier of the Applicant’s offer shall complete a contract.
19. Placement of an order, either verbally or in writing, shall imply acceptance of the Supplier’s offer and of these terms and conditions.Costs of packing and other expenses
Cost of packing and other expenses
20. The cost of any special packing or materials used in relation to the goods are at the Applicant’s expense, notwithstanding that such cost may have been omitted from any quotation or price listing.
21. The descriptions, illustrations and performances contained in the Supplier’s catalogues, price lists and other advertising material do not form part of any contract of sale of the goods or of the description applied to the goods.
22. Where formulae are supplied by the Applicant:
(a) the Applicant is fully responsible for the accuracy and detail of the formulae, and the Supplier will not be responsible for any loss or damage suffered by the Applicant in respect of goods supplied and based on the Applicant’s formulae which are either unsuitable or unusable for any reason, or are not of sufficient quantities for the Applicant’s intended use or purpose;
(b) the Supplier may refuse any order where, in its reasonable opinion, the Applicant has failed to provide sufficient detail in the formulae to enable the Supplier to provide the requested goods;
(c) the Applicant warrants its formulae do not infringe nay copyright or other intellectual property of any third party, and the Applicant hereby indemnifies the Supplier against any costs suffered by or claims or proceedings made against the Supplier arising from its use of the formulae supplied by the Applicant;
(d) the Supplier’s price is made on estimates of quantities required based on the formulae. If there are any adjustments to the formulae by the Applicant that results in a change of quantities above or below the quantities estimated by the Supplier and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to the Supplier’s then prevailing price list;
(e) notwithstanding anything else contained in these terms and conditions, the Supplier will not be under any obligation to accept any changes to the formulae once it has placed an order for any special materials that may be required to fulfil an order or manufacture of the goods has commenced; and
(f) no error or misdescription by the Applicant will vitiate a contract between the Supplier and the Applicant for the supply of goods, and the Applicant will be bound to take the goods ordered and pay for them without deduction or setoff of any kind.
23. Any performance values or specifications given by the Supplier are estimates only, and the Supplier is under no liability for damages for failure of the goods to attain such values or meet such specifications unless specifically guaranteed in writing. Any such written guarantee is subject to the recognised tolerances applicable to such values or specifications.
24. The delivery times made known to the Applicant are estimates only and the Supplier is not liable for late delivery or non-delivery. Time will not be of the essence of this credit application and any delay in delivery will not constitute grounds for cancellation of this contract by the Applicant.
25. In the absence of specific instructions from the Applicant, the Supplier will select the point of shipping it considers, in its absolute discretion, to be reasonable. For all domestic orders with a net value exceeding $2500.00, one shipment will be provided FIS (Sydney, Adelaide, Melbourne, Brisbane and Perth) by the Supplier’s nominated carrier unless otherwise arranged. For shipment of Dangerous Goods and certain classes of batteries, individual freight arrangements will need to be made and the FIS incentive does not apply. Further, for goods shipped using the FIS method, unless otherwise specified by the Supplier prior to agreement, the Supplier will insure the goods against loss or damage in transit.
26. Where the Applicant requires an alternate carrier, or where goods are shipped on a ‘freight charges collect’ basis, all responsibility for goods during transit passes to the Applicant immediately upon receipt of the goods by the nominated carrier.
27. Individual freight arrangements will need to be made for the shipment of dangerous goods. The FIS incentive mentioned in clause 25 does not apply in these circumstances.
28. The Supplier may, at its option, deliver the goods to the Applicant in any number of instalments unless otherwise agreed in writing by the Supplier.
29. If the Supplier delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
(a) it is not a repudiation of any contract of sale formed by these conditions; and
(b) the defective instalment is a severable breach that gives rise only to a claim for compensation.
30. The Applicant is responsible for providing adequate facilities for unloading of the goods at the place specified by the Applicant.
31. The Supplier is not liable for any loss, damage or delay occasioned by the Applicant or its customers arising from late or non-delivery or late installation of the goods.
Loss or damage in transit
32. The Supplier is not responsible to the Applicant or any person claiming through the Applicant for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the Supplier is legally responsible for the person who caused or contributed to that loss or damage).
33. The Supplier must provide the Applicant with such assistance as may be necessary to press claims on carriers so long as the Applicant:
(a) has notified the Supplier and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
(b) lodges a claim for compensation on the carrier within three days of the date of receipt of the goods.
Retention of title
34. Whilst the Applicant has not paid for the goods supplied in full at any time, the Applicant agrees that property and title in the goods shall not pass to the Applicant and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.
35. 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 shall not mix the goods with other similar goods.
36. The Applicant shall 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 shall sell as agent and bailee for the Supplier and the proceeds of sale of the goods shall be held by the Applicant on trust for the Supplier absolutely.
37. The Applicant’s indebtedness to the Supplier, whether in full or in part, shall not be discharged by the operation of clause 36 hereof unless and until the funds held on trust are remitted to the Supplier.
38. 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.
39. The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 38. 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.
40. 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.
41. For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the Personal Property Securities Act 2009.
Fitness for purpose
42. The Applicant is fully responsible for determining the suitability and fitness for purpose of goods ordered and the Supplier, to the extent allowable at law, makes no warranties as to suitability or fitness for purpose of goods unless specifically warranted in writing.
43. The Supplier reserves the right to make a reasonable charge for storage if:
(a) the Applicant notifies the Supplier that it is unable to take delivery of the goods at the initial delivery time, whereupon the Supplier will be entitled to charge storage fees to the Applicant in respect of the goods held for delivery by the Supplier from the initial delivery date to the date of actual delivery at normal commercial rates prevailing at that time; or
(b) delivery instructions are not provided by the Applicant within seven days of a request by the Supplier for such instructions, whereupon the Supplier may charge for storage from the first day after the Supplier requests the Applicant to provide delivery instructions.
44. The Supplier is not under any duty to accept goods returned by the Applicant, and will do so only on terms to be agreed in writing in each individual case.
(a) No claim by the buyer need be recognised unless made in writing within 14 days after delivery of goods to be buyer. No claim for damage or resultant expense direct or indirect in respect of any goods shall in any case exceed the invoice price of the goods in respect of which any damages or expense shall arise. All damage or expense over and above such invoice price shall be responsibility of the buyer.
45. If the Supplier agrees to accept returned goods from the Applicant under clause 50, credit will not exceed 90 percent of the original purchase price.
46. If the Supplier agrees to accept returned goods from the Applicant under clause 50, the Applicant must, at its cost, return the goods to the Supplier at the Supplier’s place of business.
47. Non-standard equipment made to special order cannot be credited under any circumstances. Inward freight, packing and delivery charges are the responsibility of the Applicant.
48. Unless otherwise agreed, goods returned under clause 44 will be subject to a restock fee. All goods with a net value in excess of $20 will be subject to at least a 10 percent restock charge.
49. Goods returned must be accompanied by a delivery docket stating the original invoice number, date of purchase and reason for return.
50. No order may be cancelled or changed except with consent in writing and on terms that will indemnify the Supplier against all liabilities, expense and loss suffered by it, either directly or indirectly, as a result of, or in connection with, the said cancellation or changes.
Cancellation of terms of credit
51. 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.
52. Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
53. The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.
Provision of further information
54. The Applicant undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the Applicant’s creditworthiness, including an updated credit application.
55. If the Applicant is a corporation (with the exception of a public listed company), 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.
56. If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.
57. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that:
(a) the Applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) the Applicant has the right to be indemnified out of trust assets;
(c) the Applicant has the power under the trust deed to sign this agreement; and
(d) the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
58. The Applicant must give the Supplier a copy of the trust deed upon request.
59. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.
60. If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
61. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
62. A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant's authorised officer in writing.
63. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
64. 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 debt recovery fees and legal costs on an indemnity 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.
65. The Applicant acknowledges and agrees that payments by the Applicant will be applied by the Supplier as follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 38 and 64.
(b) Secondly, in payment of any interest incurred in accordance with clause 68.
(c) Thirdly, in payment of the outstanding invoice(s).
Taxes and duty
66. 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.
67. If as a result of:
(a) any legislation becoming applicable to the subject matter of this agreement; or
(b) 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.
68. The interest rate on any outstanding debts is a fixed rate of 15 percent per annum.
69. 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.
70. 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.
71. 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.
72. In relation to the supply of goods, the Supplier’s liability is limited to:
(a) replacing the goods or supplying similar goods;
(b) repairing the goods;
(c) providing the cost for replacing the goods or for acquiring equivalent goods; and
(d) providing the cost for having the goods repaired.
73. In relation to the supply of services, the Supplier’s liability is limited to:
(a) supplying the service again; or
(b) providing for the cost of having the services supplied again.
74. 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.
75. 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.
76. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
77. 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.
78. 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.
Consent to register
79. The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
80. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter. 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.