The whole of this agreement between
International Auto Parts Pty Ltd ACN 600488819 ("the Supplier';) and the Applicant is set out in the Credit Application Form and these Credit Terms and Conditions as amended from time to time and those other terms, if any, which are implied and which cannot be excluded by law ("Terms").
Any other contractual terms of the Applicant (whether upon the Applicant's order or elsewhere) that are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer.
The Supplier intends to supply the Applicant with various goods being inventory, parts and other goods ("Goods"). By receiving delivery of any Goods or Services, the Applicant shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all other terms.
All Goods and Services are charged at the price ruling at the date of invoice and any GST or other government imposts shall be payable by the Applicant.
(a) Australian Consumer Law means the law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any corresponding provisions of state or territory fair trading legislation or the) (Cth).
(b) Business means the Applicant's business operating an International Auto Parts franchise.
(c) GST as used in these Terms has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(d) PPS Law means:
(i) the PPSA;
(ii) any regulation made pursuant to the PPSA; and
(iii) any amendment from time to time made to any other legislation or regulation as a consequence of a PPS Law referred to in paragraph (i) or (ii).
(e) PPSA means Personal Property Securities Act 2009 (Cth).
(f) Registration Commencement Time has the same meaning as given to that term in the PPSA.
(g) Security Interest means:
(i) any security for the payment of money or performance of obligations including a mortgage, charge, lien, pledge, trust or power, general security agreement, or title retention arrangement;
(ii) a security interest as defined in the PPSA: Or
(iii) any document to grant or create anything referred to in either paragraphs (i) or (ii) of this definition and any other thing which gives a creditor priority to any other creditor with respect to any asset or an interest in any asset.
(h) The terms attaches, collateral, financing change statement, financing statement, perfected, purchase money security interest and registration commencement time as used in these Terms have the meaning given to them in the PPSA.
3. Credit Terms
3.1. Payment is due on or prior to thirty (30) days from the date of statement rendered in respect of the supply of the Goods and Services unless otherwise stated in writing by the Supplier. The Supplier may charge liquidated damages at a rate equivalent to two percent (2%) in excess of the rate of interest for the time being fixed under Section 2 of the Penalty Interest Rates Act 1983 (Qld) if payment is not received by the due date.
3.2. The Applicant is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on an indemnity basis) incurred by the Supplier for enforcement of obligations and recovery of monies due from the Applicant to the Supplier.
3.3. If the Applicant sells the Business or the Business ceases to trade, payment of all outstanding moneys must be paid to the Supplier upon settlement of the sale of Business or on the day the Business ceases to trade.
4. Delivery and Supply
4.1. Any times quoted for delivery and/or supply are estimates only and the Supplier shall not be liable for failure to delivery/supply or for delay in delivery/supply. The Applicant shall not be relieved of any obligation to accept or pay for Goods and Services by reason of any delay in delivery/supply or dispatch. The Supplier reserves the right to stop supply at any time if the Applicant fails to comply with the Terms.
4.2. The risk of damage, loss or deterioration of any Goods will pass to the Applicant upon the earlier of dispatch or expiry of 7 days from the date of notification by the Supplier to the Applicant that the Goods are available for collection.
4.3. If the Applicant cancels its order prior to delivery but after the Goods are ready for dispatch, the Supplier reserves the right to invoice the Applicant for all expenses involved in the preparation of the order.
5.1. Until the Applicant has paid to the Supplier all amounts owing to the Supplier (howsoever arising):
- Title in all Goods supplied from time to time shall remain vested in the Supplier;
- The Applicant shall hold the Goods as bailee only;
- The Goods shall be at the Applicant's risk in accordance with Clause 4.2;
- The Goods must be covered by the Applicant's insurance for the full purchase price;
- The Goods must not be mixed with goods supplied by other suppliers so as to lose their identity and shall be kept separate from such other goods, if requested by the Supplier;
- The Applicant must, if requested by the Supplier, provide the Supplier with any information (and any supporting documentation) which the Supplier requires in relation to the Applicant's inventory of Goods;
- The Supplier is hereby irrevocably authorized to enter any premises where it reasonably believes the Goods are kept, to inspect whether the Applicant is storing Goods in accordance with these Terms and to audit the Applicant's inventory of Goods;
- The Goods will be delivered up to the Supplier at its request. For the purpose of taking possession of the Goods, the Supplier is irrevocably authorized to enter any premises where it reasonably believes the Goods are kept, and to use the name of the Applicant and, if necessary, to act on the Applicant's behalf to recover the Goods:
- The Goods (or any part of them) may be sold by the Applicant as fiduciary agent for the Supplier in the ordinary course of the Applicant's Business, provided that all proceeds of sale, and any book debts owing to the Applicant (to the extent that those book debts relate to such sales), shall be held by the Applicant on trust for the Supplier;
- On request, the Applicant must establish a separate bank account in its name, which includes the words 'held on trust for International Auto Parts Pty Ltd'. If that account is requested, the Applicant must pay all proceeds from the sale of Goods into that account;
- The Applicant must, if requested by the Supplier, provide the Supplier with ay information (and any supporting documentation) which the Supplier requires in relation to any sale of Goods by the Applicant (including, without limitation, where Goods have been incorporated or transformed into other goods or products) and the proceeds of sales;
- The Goods must not be incorporated or transformed into other goods or products;
- If, contrary to these Terms, the Goods are incorporated or transformed into other goods or products; the Applicant shall hold a proportion of any payment received for such goods or products ("relevant proportion") on trust for the Supplier. The relevant proportion is the percentage that the invoiced price for the Goods (including GST) bears to the total price paid to the Applicant for the goods or products into which they are transformed or incorporated; and
- Money received by the Supplier from the Applicant may be applied at the Supplier's discretion to payment of any amount outstanding at that time, notwithstanding any direction from the Applicant to the contrary.
5.2 The parties agree that:
- The Supplier's interest as seller under these Terms is a Security Interest and for the avoidance of doubt it is hereby declared that the Security Interest arises in respect of every supply of Goods under these Terms;
- The Supplier's interest in the Goods is effective and attaches to the Goods immediately upon the Applicant taking delivery of the Goods; and
- The Supplier has given value for the Security Interest
5.3 All amounts owing to the Supplier become immediately due and payable if:
- The Applicant defaults in making prompt payment of any amount due to the Supplier;
- The Applicant is in liquidation, in provisional liquidation, under administration or wound up or has had a controller appointed to its property;
- The Applicant is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstitution or amalgamation while solvent on terms approved by the Supplier);
- An Application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 30 days of having been made), resolution passed, proposal put forward, or any other action taken, in each case in connection with the Applicant, which is preparatory to or could result in any of the points above in this clause 5.3;
- The Applicant is taken (under section 459C(1) of the Corporations Act 7001 (7th)) to have failed to comply with a statutory demand;
- The Applicant is the subject of an event described in section 459(C)(2)(b) or section 585 of the Corporations Act 2001 (Cth);
- The Applicant is otherwise unable to pay its debts when they fall due;
- Something having a substantially similar effect to the points in this clause 5.3 happens in connection with that person tine, the law of any jurisdiction; or
- If the Applicant is an individual, It commits an act of bankruptcy or any act which with the lapse of time may constitute an act of bankruptcy.
6. PPSA Further Assurances
6.1. If the Supplier determines that a PPS Law applies, or will in the future apply, to any agreement that incorporates these terms ('Supply Agreement") or the supply of any Goods, then the Applicant must promptly upon request from the Supplier:
- Do anything (including obtaining consents, making amendments to the Supply Agreement Of executing a new Supply Agreement) for the purpose of:
- Ensuring that any Security Interest created under, or provided for by, the Supply Agreement:
- Attaches to the collateral that is intended to be covered by that Security Interest;
- Is enforceable, perfected, maintained and otherwise effective; and
- Any Security interest created under, or provided for by, the Supply Agreement has the priority contemplated by that Supply Agreement; or
- Enabling the Supplier, on and from the Registration Commencement Time, to prepare and register a financing statement or financing change statement;
- Enabling the Supplier, to exercise any of its powers in connection with any Security Interest created under, or provided by, the Supply Agreement; and
- Provide any information requested by the Supplier in connection with the Supply Agreement to enable it to exercise any of its
powers or perform Its obligations under the PPS Law.
6.2. Except if section 275(7) of the PPSA applies, each of the parties agree not to disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available.
6.3. Anything that is required by the Supplier to be done under this clause 6 shall be done by the Applicant at its own expense. The Applicant must reimburse the costs of the Supplier in connection with any action taken by the Supplier under or in connection with this clause 6.
6.4. The Applicant agrees that, on and from the Registration Commencement Time:
- The Applicant has no rights under, or by reference to sections 125, 142 and 143 of the PPSA Ito. Applicant defaults and the
Supplier takes enforcement action under these Terms in respect of the Goods;
- The Supplier is under no obligation to dispose of or retain any secured property the Supplier sizes within a reasonable time under section 125 of the PPSA;
- If any part of the moneys owing to the Supplier by the Applicant is secured by a purchase money security interest granted by the
Applicant, the Supplier will use any money received under this document in the following order:
- First, to pay obligations that are secured by which are not secured by a purchase money security interest; and
- Second, to pay obligations that are secured by a purchase money security interest
6.5. On and from; the Registration Commencement Time, the Applicant agrees to waive all rights to:
- Receive any notice under sections 95, 130 and 135 of the PPSA in relation to the enforcement of any Security Interest over the
- Receive a statement of account under sections I32(3)(d) and 132(4) of the PPSA; and
- A copy of, or notice of any verification statement confirming registration of a financing statement or a financing change statement relating to any Security Interest under, or provided for by, the Supply Agreement.
7. Returns, Cancellations and Claims
7.1. The Applicant shall not return any Goods to the Supplier without obtaining prior authorization from the Supplier. Unauthorised returns will not be accepted. No returns will be accepted unless a copy of the relevant invoice is enclosed with the returned Goods. A list of the Goods returned including product descriptions, quantity, date of return and the Applicant's name and address must also be enclosed with the returned Goods. All Goods must be returned in the original packaging and the Applicant shall be responsible for all damage Incurred during return shipment. A credit note will be issued by the Supplier only after Goods returned are either collected by the Supplier's authorized representative or returned to it by the Applicant as set out herein.
7.2. All complaints, claims or notification of lost Goods, incomplete Goods, Goods damaged in transit or Goods that do not comply with the Applicant's purchase order must be submitted by the Applicant to the Supplier in writing within 10 business days of the date of the invoice rendered for the supply of the Goods. Otherwise, the Applicant shall be deemed to have accepted the Goods and shall not refuse to pay for the Goods on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Applicant's purchase order.
7.3. Notwithstanding Clauses 7.1 and 7.2, all complaints, claims or notification of carton shortages, Goods damaged in transit or pilferage must first be directed to the freight carrier.
8.1. To enable the Supplier to assess the Applicant's application for commercial credit (including its credit worthiness), assist the Applicant to avoid defaulting on its credit obligations, notify other credit providers of any default by the Applicant, collect overdue payments and otherwise administering the parties' arrangements, the Applicant authorises the Supplier:
- Obtain from a credit reporting agency a credit report containing personal information about the applicant in accordance with
- Obtain a report from a credit reporting agency and other information in relation to the Applicant's commercial credit activities; and
- Give to (in accordance with Section 18N(1)(b) of the Privacy Act 1988), and obtain from, any credit provider named In the accompanying credit application, credit providers that may be named in a credit report issued by a credit reporting agency, its hank, its accountant, any guarantors, any related body corporate of the Supplier and any party to arrangements (such as franchise arrangements) connected with these Terms, information about the Applicant and the Applicant's credit arrangements. The Applicant understands that this information ca include any information about it and its credit worthiness, credit worthiness, credit standing, credit history or credit capacity.
8.2. The Applicant agrees that where it has provided personal information about an individual to the Supplier in its Credit Application, or otherwise in connection with its arrangements with the Supplier, it has made or will immediately make the individual aware of that fact and any other privacy –related details provided by the Supplier.
9.1. The Applicant must notify the Supplier in writing within seven (7) days of-
- Any alteration of the name or ownership of the Applicant or the Applicant's Business,
- The issue of any legal proceedings against the Applicant;
- The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Applicant;
- Any changes in the ownership of the business name of the Applicant;
9.2. The Applicant agrees that it shall be liable to the Supplier for all Goods supplied to the new owner of the Applicant's Business or business name by the Supplier until notice of any such change is received.
10. Warranty and liability
10 1 Goods sold shall have the benefit of any warranty given by the manufacturer and will only be considered if return of the goods or any part of them is in accordance with the International Auto Parts warranty policy but International Auto Parts shall not be liable for any loss or damage either direct or consequential loss or damage to the customer arising from delay or postponement in delivery.
10.2, The Applicant may have rights under the Australian Consumer law or other rights in relation to the supply of the Goods and Services that cannot lawfully be excluded by the Supplier (Non-excludable Rights). With the exception of Non-excludable Rights, and notwithstanding any other - provision of these Terms, the liability of the Supplier to the Applicant, whether arising under or in connection with these Terms or the performance or non-performance thereof or anything incidental thereto, and whether by way of indemnity, by statute (to the extent that it is possible to exclude such liability), in tort (for negligence or otherwise), or in any other basis in law or equity is hereby limited and excluded as follows.
- The Supplier shall have no liability whatsoever to the Applicant for the loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss or for any special, indirect or consequential loss or damage: and
- The total aggregate liability of the Supplier is at all times limited to the amount equal to the purchase price of the Goods.
10.3. To the maximum extent permitted by law, the Supplier's liability pursuant to:
- Any warranty, term or condition implied in these Terms; and
- Any Non -excludable Right (including, for the avoidance of doubt, section 274 of the Australian Consumer Law Of any similar or successor provision), shall be limited, at the Supplier's option, to repair or replacement of the Goods or the cost of repairing or replacing the Goods or re -supply of the Services.
10.4 The Supplier shall not be liable for any claim, loss or expense sustained or incurred by any person arising in any way as a result of the unavailability of Goods, any delay in delivery of the Goods, any failure to deliver the Goods or any failure to provide the Services due to a factor outside its control.
11. No Waiver
The Supplier's failure to enforce or insist upon the timely performance of any term, condition, covenant or provision in these Terms, or the Supplier's failure to exercise any right or remedy available under these Terms or at law or the Supplier's failure to insist upon timely payment of monies when due or to demand payment of any charges or fees which accrue or any extension of creditor forbearance under these Terms shall not constitute a waiver of any default nor a waiver of the Supplier's right to demand timely payment of future obligations or strict compliance with the Terms.
12. Time is of the essence
Time is of the essence in respect of an obligation of the Applicant to pay money under these Terms.
13. Legal Construction
13.1. These terms shall be governed by and interpreted according to the laws of Queensland arid the parties consent and submit to the jurisdiction of the courts of Queensland.
13.2. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.
14. Variation and Waiver
A provision of these Terms, or a right created under them may be waived, varied or superseded by the Supplier as notified to the Applicant in writing, by which the party or parties will be bound.