Advance Stainless Steel means Advance Stainless Steel Pty Ltd (ACN 129 246 671) or any related body corporate of Advance Stainless Steel Pty Ltd (ACN 129 246 671)
Customer/s means any person, body corporate or entity which purchasers or orders any Goods or Services from Advance Stainless Steel.
Default Event means an event as specified as a Default Event in clause 8 of these Terms.
Default Fee means the fee specified in clause 8(b)(v) of these Terms.
Due Date means, in relation to any Goods and Services, the 30th day of the month following the month in which those Goods and Services are supplied.
Goods means the goods and services supplied or to be supplied by Advance Stainless Steel to the Customer including goods manufactured at the Customers request.
Money/s means all moneys now or in the future actually or contingently owing by the Customer to Advance Stainless Steel and includes any part of those moneys and includes all interest accruals and costs, expenses and disbursements.
PPSA means the Personal Property Securities Act 2009 (Cth).
PMSI means a Personal Money Security Interest.
PPSR means the Personal Property Securities Register.
Rate means 10% per annum or such other rate as Advance Stainless Steel nominates by notice to the Customer and is applied as a daily percentage rate.
Real Property means all real property interests held by the Customer now or in the future.
Services means any service provided by Advance Stainless Steel being the supply of stainless steel products, including installations and consultations, and all related or ancillary services.
Terms means these Credit Account Terms and Conditions, as amended from time to time.
(a) These Terms, as amended or replaced from time to time, apply to any Goods and Services supplied, or to be supplied to the Customer, or any third party on the Customer’s behalf.
(b) If these Terms are varied, Advance Stainless Steel shall not be required to give notice of the changed terms and conditions to the Customer.
(c) These Terms shall prevail to the extent of any inconsistency with other terms and conditions relating to the supply of Goods and Services.
(d) If any of these Terms, or any document which relates, become void or unenforceable that part is severed so that all parts which are not void or unenforceable remain in full force and effect and are unaffected by the severance.
(e) Advance Stainless Steel’s failure to exercise any rights or strict performance under these Terms shall not operate as a waiver of its rights.
(f) These Terms and any document incorporating these Terms shall be governed by and construed in accordance with the laws of Territory in which the Goods and Services are supplied.
(g) Any reference to an Customers includes its respective successors or permitted assigns.
(h) The singular includes the plural and the converse.
(i) If the Customer constitutes more than one person or entity, the Terms bind each of them jointly and severally.
(j) If the Customer is a trustee of any Trust then the Customer warrants that the Trust is bound by these Terms and that it is a proper exercise of the Customer authority and power under the trust instrument and at law to trade with Advance Stainless Steel under these Terms.
1. Customers Obligations
(a) These Terms are intended to regulate key trading terms in connection with the supply of Goods and Services by Advance Stainless Steel.
(b) These Terms, or these terms as varied, apply if Advance Stainless Steel accepts any order for Goods or Services from the Customer, whether for cash or on credit.
(c) All Goods and Services sold, manufactured or supplied by Advance Stainless Steel shall be subject to these Terms, or these terms as varied, unless Advance Stainless Steel notifies the Customer otherwise in writing.
(a) The price of any Goods or Services shall be agreed between the parties and where there is no written confirmation of the price, the price shall be the amount indicated in the standard pricelist.
(b) Advance Stainless Steel may charge in addition to the price of the products an amount for delivery, freight, demurrage and handling at rates dependent on distance and volume of Goods supplied.
(c) If between the date of acceptance of an order and the issue of an invoice, there is an increase in the cost to Advance Stainless Steel of the supply of Goods or Services beyond the control of Advance Stainless Steel, then Advance Stainless Steel may increase the amount of the invoice in line with the increased cost.
(d) Any discount or rebate shall only apply if Advance Stainless Steel and the Customer agree in writing.
(e) A service fee sufficient to cover Advance Stainless Steels administration and banking costs may be added to the price where payment made by the Customer is made by way of credit card.
(a) Advance Stainless Steel will invoice the Customer on delivery of the Goods or Services.
(b) Unless otherwise agreed by the parties in writing, payment by the Customer to Advance Stainless Steel must be made by the Due Date.
(a) The price of all Goods is exclusive of GST except where expressed to be inclusive of GST.
(b) The Customer must pay for all Goods and Services by the Due Date despite the date on which the Customer receives an invoice or statement in respect of the Goods and Services or any dispute in relation to the Goods and Services.
(c) In respect of any Goods and Services not paid by the Due Date, Advance Stainless Steel shall charge the Customer interest, from the day immediately after the Due Date, calculated and accruing daily at the Rate disclosed.
(a) As security for any of the amounts due to Advance Stainless Steel from time to time, the Customer charges all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all Real Property to Advance Stainless Steel.
(b) Without limiting the generality in the above clause 3(a), the Customer agrees, as beneficial owner under Conveyancing Act 1919 (NSW), on request of Advance Stainless Steel, to execute any documents and do all things reasonably required by Advance Stainless Steel, to perfect the charge given in clause 3(a), including registering mortgage security over any Real Property.
(c) The Customer appoints Advance Stainless Steel to be the Customers lawful attorney for the purposes of executing and registering documents, pursuant to the above clause 3(b), and taking all such steps in that regard.
(d) The Customer indemnifies Advance Stainless Steel on an indemnity basis against all costs and expenses incurred by the Customer in connection with the preparation and registration of any such steps needed to perfect the security or prepare or register the mortgage documents.
(e) The Customer consents unconditionally to Advance Stainless Steel lodging a caveat or caveats noting its interest on any Real Property.
6. Retention of Title
(a) Advance Stainless Steel retains legal and equitable title in any Goods supplied to the Customer until payment in full or in connection with the supply of the relevant Goods and Services has been received by Advance Stainless Steel.
(b) Until all Money’s are paid in full by the Customer, the following terms shall apply:-
i) The Customer holds the Goods as Advance Stainless Steel’s fiduciary agent and bailee.
ii) All Goods must be properly stored by the Customer, separate from any other goods, and in a manner which clearly shows that Advance Stainless Steel is the owner of the Goods.
iii) The Customer must insure the Goods.
iv) All proceeds of the Goods, together with insurance proceeds, must be accounted to Advance Stainless Steel.
v) Advance Stainless Steel must be permitted reasonable access to the Customers premises at any time to inspect the Goods.
vi) The Customer may sell the Goods as fiduciary agent for Advance Stainless Steel.
vii) The Customer shall, as bailee for Advance Stainless Steel, hold any proceeds (as that term is defined in the PPSA) of any resale, disposal or other dealing with the Goods, or any other product incorporating the Goods in trust for Advance Stainless Steel and shall pay the proceeds in a separate fiduciary account to be held in trust for Advance Stainless Steel until accounted for to Advance Stainless Steel at the demand of Advance Stainless Steel.
7. PPSA Security Interest
(a) Retention of title, as described in the above clause 4, shall constitute a PMSI by the Customer in favour of Advance Stainless Steel in respect of all present and after acquired Goods supplied to the Customer by Advance Stainless Steel.
(b) For the avoidance of doubt, for the purposes of PPSA, there is an intention by the above clause 6(vii) that a PMSI is created for the benefit of Advance Stainless Steel.
(c) The Customer agrees that Advance Stainless Steel may register any PMSI created by these Terms on the PPSR.
(d) The Customer must immediately, if requested by Advance Stainless Steel, sign any documents and/or provide any documents and do all things required by Advance Stainless Steel to ensure the PMSI is a perfected security interest.
(e) The Customer waives any rights it may have in respect to:-
i) Receiving a verification statement in respect of any financing statement or financing change statement (as these terms are defined in the PPSA) registered by Advance Stainless Steel in respect of any Goods.
ii) Applying to a court for an order concerning the removal of an accession under s97 of the PPSA.
iii) Receiving any notices the Customer would otherwise be entitled to receive under ss 95, 118, 121, 130 or 135 of the PPSA.
(f) The Customer and Advance Stainless Steel agree that in so far as the provisions of Chapter 4 of the PPSA are for the benefit of the Customer or place an obligation on Advance Stainless Steel, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that Advance Stainless Steel otherwise agrees in writing.
(a) A Default Event shall occur if:-
i) A tax invoice issued to the Customer remains unpaid after the Due Date;
ii) The Customer fails to make any payment payable pursuant to these Terms;
iii) The Customer ceases to or suspends conduct (or threatens to) of its business while a tax invoice remains outstanding;
iv) An administrator, liquidator, provisional liquidator, receiver and/or manager or any other form of insolvency administrator or controller is appointed to the Customer over all or part of the Customers assets while a tax invoice remains outstanding.
(b) If a Default Event occurs:-
i) Advance Stainless Steel may, in its absolute or sole discretion, suspend or terminate the supply of any future Goods and Services;
ii) All unpaid Moneys become immediately due and payable;
iii) Advance Stainless Steel may in its absolute discretion permit its servants, agents or employees to enter into the Customers premises and retain possession of the Goods and sell them.
iv) Advance Stainless Steel may seek and sue for Moneys owing in respect of the Goods and Services.
v) The Customer is liable to pay to Advance Stainless Steel and Advance Stainless Steel may recover in full from the Customer a Default Fee, such Default Fee being an amount that is calculated at a rate up to 12% of the current debit balance of any Moneys outstanding as at the time of the Default Event. It is acknowledged that the purpose of the Default Fee is to defray the expense and costs incurred by Advance Stainless Steel as a result of the Default Event;
vi) In addition to the Default Fee, the Customer is liable to pay Advance Stainless Steels legal costs and disbursements on a full indemnity basis incurred by Advance Stainless Steel and/or commissions paid by Advance Stainless Steel to any commercial or mercantile agent (including dishonour fees), arising from or as a result of Advance Stainless Steel exercising or enforcing or seeking to exercise or enforce its rights under these Terms.
(a) Risk in relation to any Goods and Services shall pass onto the Customer on delivery of the Goods.
(b) Delivery of Goods shall be at Advance Stainless Steel’s premises and risk shall pass on collection of Goods by the Customer or its agent.
(c) If Advance Stainless Steel agrees to ship Goods then risk of the Goods shall pass immediately on delivery of the Goods, by Advance Stainless Steel or its agent, at the Customers designated place of delivery.
(a) Any notice may be given at that party’s registered address and/or any other address stipulated in any application in connection with these Terms or as notified for the purposes of these Terms.
11. Time of the Essence
(a) For the purposes of any payment of Moneys required under these Terms, time shall be of the essence.
12. Exclusion of Implied Terms
(a) Advance Stainless Steel, to the extent permitted by law, except for the benefit of consumer guarantees under the Australian Consumer Law, excludes all conditions, warranties, terms and consumer guarantees implied by law arising in connection with the supply of Goods and Services.
(b) The Customer shall rely entirely on its knowledge, skill and judgement in selecting Goods which it orders from Advance Stainless Steel.
(a) Refunds or returns will only be given to the extent that there is a non-excludable right to return or refund under the Australian Consumer Law or the Sale of Goods Act NSW or other applicable legislation.
(b) The Customer shall inspect all Goods and within seven (7) days of delivery notify Advance Stainless Steel in writing of any shortage in quantity, defect, incorrect specification, damage or Goods not in accordance with the Customers order.
(c) The Customer is responsible for ensuring that the Goods correspond with the order placed prior to use.
(d) After use or expiry of the time stated in the above subclause (b), the Goods are to be deemed free from any defect or damage.
(e) No credit or replacement will be given unless and until Goods are verified as being valid for return.
(f) Advance Stainless Steel reserves the right to recover costs if it is found that the products are not valid for return or are not defective.
(g) All freight, handling and other charges in relation to the returning of Goods are the responsibility of the Customer.
14. Limitation of Liability
(a) To the maximum extent permitted by law:-:-
i) Advance Stainless Steel shall have no liability to the Customer for consequential loss.
ii) Advance Stainless Steel total aggregate liability for loss, howsoever arising, shall not exceed the GST exclusive aggregate price paid by the Customer to Advance Stainless Steel for the specific Goods and Services.
(b) The limitations and exclusions noted in the above clause 11(a) shall not include any loss that is directly attributable to:-
i) Personal injury or death caused by Advance Stainless Steels default, breach of these Terms or negligence; or,
ii) Fraud by Advance Stainless Steel.