Words used in these trading conditions: We, and similar expressions, refer to Triforce Australia Pty Limited ACN 095 104 680 You, and similar expressions, refer to you, our customer or proposed customer. Triforce Services means Triforce Services Australia Pty Ltd ACN 130 999 512
TERMS AND CONDITIONS
1.The terms of payment are strictly seven (7) days (or such other period as nominated by the supplier herein) from the date of invoice. Triforce Australia Pty Ltd ABN 88 095 104 680 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.Unless the Supplier grants credit the Applicant must pay for all orders on delivery.
3.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:(a)10 percent of the amount of the invoice payable or $[amount], whichever is the less; and(b)a further 10 percent per annum payable per year or $[amount], whichever is the less, or part thereof, until payment by the Applicant.
Early payment discount
4.The Supplier will accept payment of 99% of the amount of an invoice (that is, applying a discount of 1%) as full discharge of the amount payable in the invoice, if the Applicant has been granted credit and pays the 99% in full prior to seven days from the date of the invoice.
5.The discount referred to in clause 4 will not be applied to any invoice, regardless of when payment is made, while payment remains outstanding by the Applicant to the Supplier for seven days or more on any other invoice or account.
6.All prices are in Australian dollars and are ex-works the Supplier’s premises.
7.The Applicant must pay all freight, packing, delivery and insurance costs, if the Supplier agrees to deliver the goods.
8.The Applicant must also pay any sales tax, goods and services tax, stamp duty and all other excises and duties that are payable relating to the supplying of the goods by the Supplier.
9.These terms and conditions apply and prevail even if they are inconsistent with anything said or implied in any earlier or later order forms or similar documents.
10.The Supplier is not obliged to accept any order from the Applicant. If the Applicant places an order with the Supplier then it becomes binding from the moment that the Supplier accepts it even if the Supplier does not notify the Applicant that it has been accepted.
11.Once the Applicant places an order and the Supplier accepts it, the Applicant may cancel or return the goods only upon payment of the Supplier’s re-stocking charge, which is 15 percent of the amount of the order. The Applicant acknowledges that this charge represents a reasonable and genuine pre-estimate of the Supplier’s expenses and loss resulting from cancelled orders.
12.Delivery times are estimates only and the Supplier is not liable for delays in delivery.
13.The Applicant acknowledges and agrees that this agreement will 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.
14.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.
15.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.
16.The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the Personal Property Securities Act 2009 (“PPSA”) or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant’s authorised representative.
Queensland Fair Trading Act
17.The Queensland Fair Trading Act may regard some of the Supplier’s promises as warranties which are additional to warranties which arise out of statutes. If so, the Supplier is required to give the Applicant certain information in connection with those additional warranties, as set out below. The Applicant should serve a notice of any claim under those additional warranties, on the Supplier. The notice must state the warranty under which the Applicant is claiming and also state what has happened which puts the Supplier in breach of the warranty. The Applicant must bear the costs of making the claim. The Applicant’s rights under those warranties are in addition to all their other rights and remedies under law.Security/charges
18.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 to the Supplier until discharged.
19.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 to the Supplier until discharged.
20.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.
21.Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security over real or personal property, those charges, mortgages or other security interests will continue and co-exist with the obligations and security interests created pursuant to this agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Purpose of credit
22.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
23.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. Only acceptance by the Supplier of the Applicant’s offer will complete a contract.
24.Placement of an order, either orally or in writing, will constitute agreement by the Applicant that these terms and conditions apply to the order.
Retention of title
25.Title in the goods does not pass to the Applicant until the Applicant has made payment in full for the goods and, further, until the Applicant has made payment in full of all other money owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
26.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.
27.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.
28.The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 27. 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.
29.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.
30.Until the Applicant becomes the owner of goods supplied, if the Supplier has reasonable grounds to expect that it might find any of those goods in any premises or vehicle the Applicant are entitled to access, the Supplier or its agent may enter into those places as if it or its agent is the Applicant.
31.The Applicant will be responsible for the Supplier’s costs and expenses in exercising its rights under clause 27 or 30. 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.
32.Any firmware or software which comes with the goods the Supplier supplies is supplied under licence only. The Applicant agrees to abide by the terms of all such licences. Typically, licences limit use of firmware and software to the one machine.
33.For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.
34.Pursuant to section 115 of the PPSA, the parties contract out of the following provisions of the PPSA:(a)Section 95 to the extent that it requires the Supplier as a secured party to give notice to the Applicant as the grantor;(b)Section 96; (c)(d)Section (e)121(4);(f)Section 125;(g)Section 130 to the extent that it requires the Supplier as a secured party to give a notice to the Applicant as the grantor;(h)Section 132(2);(i)Section 132(3)(d);(j)Section 132(4);(k)Section 135;(l)Section 137(2);(m)Section 142;(n)Section 143.
35.The Applicant will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.
36.The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant’s authorised representative.
37.The Applicant further agrees that where the Supplier has rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
38.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 its 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.
Consent to register
39.The Applicant hereby consents to the Supplier recording the details of this agreement on the Personal Property
40.The Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created pursuant to this instrument on the Personal Property Securities Register (including under section 157 of the PPSA).
41.All goods come with the manufacturer’s warranty only, and are supplied by the Supplier ‘as is’. The manufacturer’s warranty may not cover any damage caused by the use of other than genuine original manufacturer’s parts and consumables.
42.All services provided come with the service provider’s warranties as supplied to the Supplier, including those supplied by the Supplier.
Sale by specification
43.The Supplier sells their goods by specification. The Applicant decides what purpose to use the goods for or re-supply them for. The Supplier does not make any representations as to fitness for purpose.
Variation in specifications
44.The Supplier reserves the right to vary the specifications or performance criteria of any product from time to time and to obtain products from different sources, at the Supplier’s absolute discretion. The Supplier may do this without notifying the Applicant provided the Supplier has reasonable grounds for believing that the alternate product offered is substantially similar to that previously offered or represents an improvement.
Cancellation of terms of credit
45.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.
46.Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
47.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
48.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.
49.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, any changes to its 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.
50.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.
51.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.
52.The Applicant must give the Supplier a copy of the trust deed upon request.
53.If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have executed 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.
54.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.
55.If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all its liabilities to the Supplier. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
56.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).
57.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 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.
58.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 27 and 57.(b)Secondly, in payment of any interest incurred in accordance with clauses 3, 29,61 and 64.(c)Thirdly, in payment of the outstanding invoice(s).
Taxes and duty
59.The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
60.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 any supply by the Supplier to the Applicant or any amount received from the Applicant, then the Applicant must pay the Supplier the amount of the tax, duty, excise or levy on demand.
61.The interest rate on any outstanding debts is a fixed rate of 15 percent per annum.Set-off
62.All payments required to be made by the Applicant to the Supplier will be made free of any set-off, or counterclaim and without deduction or withholding.
63.Any amount from the Applicant from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.Limitation of Liability
64.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, including transport difficulties or stock shortages.
65.In relation to the supply of goods, the Supplier’s liability is limited to (at the Supplier’s election):(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.
66.In relation to the supply of services, the Supplier’s liability is limited to (at the Supplier’s election):(a)supplying the services again; or(b)providing for the cost of having the services supplied again.
67.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.
68.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 in relation to the supply of any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.Triforce Services Australia Pty Ltd
69.Triforce Services Australia Pty Ltd provides the design, implementation and advice with respect to all the products and goods supplied by the Supplier to the Applicant.
70.The Applicant acknowledges the content of clause 67 and agrees that any dispute or claim whatsoever that it may have with respect to those services, will be against Triforce Services Australia Pty Ltd. The Applicant agrees to release the Supplier from any such dispute or claim.
71.Triforce Services Australia Pty Ltd will endeavour to provide the Applicant with a Statement of Works (SOW) at the time of the supply of the services.
72.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.
73.If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
74.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.
75.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.
76.A waiver by the Supplier of any provision or breach of this agreement is only effective if made by an authorised officer of the Supplier in writing. A waiver by the Applicant of any provision or breach of this agreement is only effective if made by the Applicant's authorised officer in writing.
77.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.
The Applicant agrees to the terms of the Privacy Act 1988 authorisation contained in this document. Triforce Australia Pty Ltd ABN 88 095 104 680
Level 1 Building A, 24-32 Lexington Drive
Norwest Bus Park, Bella Vista NSW 2153
Telephone: 02 9659 6822
Fax: 02 9659 6833