terms and conditions of sale
BIDGEE GROUP Pty Ltd ACN 642 064 515
Trading as Grainline
(The Supplier)
TERMS & CONDITIONS OF SALE
1. General
If a provision of these Terms & Conditions is wholly or partly invalid or unenforceable, that provision or that part of it that is invalid or unenforceable must, to the extent, be deleted from these terms and conditions. Nothing affects the validity or enforceability of the remaining Terms & Conditions. In these terms and conditions the Applicant and\or Purchaser (“the Purchaser”) means the party accepting the terms and where applicable includes their\its directors, employees, contractors or agents. “Goods or Products” means the goods or products supplied to the Purchaser from time to time pursuant to these Terms and Conditions and form the Collateral for the purposes of the PPS Act.
2. Supply
At the request of the Purchaser, the Supplier agrees to supply the Goods described in the invoice or contract attached.
These Terms and Conditions apply to the exclusion of all others including terms and conditions incorporated in any purchase order. The Supplier supplies only on these terms and conditions and any Purchaser taking delivery of goods and services shall by doing so agree to these terms and conditions applying to the exclusion of all other terms and conditions.
3. Payment
Terms of payment on the dates or periods as set out in the attached invoice\contract. If the Purchaser fails to pay any moneys owing to the Supplier when due, such overdue moneys shall accrue interest from day to day at a rate equal to 10% per annum on such moneys after 7 days from the date of invoice, until all moneys are paid in full. In addition to any payment or interest due to the Supplier in accordance with this clause, the Purchaser shall be liable for all reasonable legal and debt collection costs incurred by the Supplier in relation to collection of any payment due by the Purchaser on a full indemnity basis.
4. Risk and Ownership
4.1 The risk of loss or damage to Goods shall pass to the Purchaser at the time that the Goods are delivered to the Purchaser.
4.2 Title to Goods shall remain with The Supplier, and the Purchaser acknowledges and agrees that The Supplier is hereby granted a Security Interest in the Products, until full payment is made of all moneys owing to The Supplier from time to time.
4.3 Until the Supplier has been paid all moneys owed by the Purchaser:
(a) the Purchaser shall hold the Goods as bailee of the Supplier, subject to the Purchaser’s right to deal with the Goods in the ordinary course of the Purchaser’s business; and
(b) the Purchaser shall indemnify the Supplier against any claim arising out of the possession, use or disposal of the Goods by the Purchaser.
4.4 To the extent permitted by law, if there is a default under these Terms and Conditions or the Purchaser fails to make payment of any monies by the due date, each Security Interest created in the Supplier’s favour will become immediately enforceable. If:
(a) a payment is not made by the Purchaser in accordance with these terms; or
(b) The Supplier receives notice of or reasonably believes that a third person may attempt to levy execution against any Products; or
(c) an Insolvency Event occurs, then the Supplier may, at any time without notice to the Purchaser, and without prejudice to any other rights that it may have against the Purchaser:-
(i) terminate the bailment referred to above; and
(ii) enter upon any premises of the Purchaser (including any Outlet) where the Supplier reasonably believes Goods may be stored and retake possession of the Goods without liability for trespass or any resulting damage;
(iii) keep or resell the Goods repossessed pursuant to paragraph (c (ii)) and pay any expenses incurred in the exercise of the Supplier’s rights from such realisations.
4.5 The Supplier has, to secure all monies payable by the Purchaser to the Supplier at any time, a PMSI in each of the Goods supplied to the Purchaser from time to time and the Supplier’s Security Interest shall extend to the Proceeds (including any Account) and Accessions. To the extent that the PPS Act provides that the Supplier does not have a PMSI in the Goods and any Proceeds arising in respect of the Products, the Purchaser agrees that the Supplier continues to hold a Security Interest in the The Security Interest will continue until the Supplier provides the Purchaser with a final release.
4.6 The Purchaser agrees to execute any documents, provide all relevant information and full cooperation to the Supplier to ensure that the Supplier has a Security Interest in the Goods and the Proceeds, and if applicable, a PMSI.
4.7 The Purchaser agrees that if the Supplier has any rights in addition to the PPS Act, those rights continue and are in addition to the rights of the Supplier under the PPS Act.
4.8 The Purchaser hereby authorises the Supplier as the Purchaser’s authorised representative to request any information under section 275 of the PPS Act from any Secured Party in relation to any Security Interest.
4.9 The Purchaser must give the Supplier 10 Business Days prior written notice of any proposed change in name and any change in details of the Purchaser, including without limitation, the Purchaser’s address, email, facsimile, or business practice.
4.10 The Purchaser must not, without the Supplier’s written consent, file, lodge or serve a Financing Change Statement or an Amendment Demand.
4.11 The Purchaser must not permit any Goods to become an Accession to or to be manufactured, processed, assembled or commingled with anything that the Supplier does not own or is not subject to a perfected Security Interest in favour of the Supplier, and even then, only if the priority of that Security Interest is no less favourable than the priority of the Supplier’s Security Interest in those Products.
4.12 The Purchaser must:
(a) do or cause to be done anything which the Supplier considers necessary or desirable to perfect and protect any Security Interest provided for by these Terms and Conditions of Trading; and
4.13 If the Purchaser disposes of the Goods in a way that gives rise to an Account, the Purchaser grants the Supplier a Security Interest in that Account.
4.14 The Purchaser acknowledges that the Supplier may register one or more Financing Statements (or Financing Change Statements) in relation to any Security Interest provided for by these Terms and If permitted by the PPS Act, the Purchaser waives its right under section 157 of the PPS Act to receive notice of any verification statement relating to the registration of any such Financing Statement or any related Financing Change Statement.
4.15 To the extent that Chapter 4 of the PPS Act would otherwise apply to an enforcement by the Supplier of any Security Interest provided for by these Terms and Conditions of Trading, the Supplier and the Purchaser agree with each other that the following provisions of the PPS Act do not apply:
(a) to the extent that section 115(1) of the PPS Act allows them to be excluded: sections 95, 121(4), 125, 129(2), 129(3), 130, 132(3)(d), 132(4), 135, 142 and 143 and any other provision of the PPS Act notified to the Purchaser by the Supplier after the date of these Terms and Conditions of Trading; and
(b) The Supplier need not give any notice (including notice of a verification statement) required under any provision of the PPS Act.
If section 115(1) of the PPS Act does not allow section 125 of the PPS Act to be excluded, the Purchaser agrees that at any time after any Security Interest provided for by these Terms and Conditions of Trading has become enforceable, the Supplier may delay disposing of, or taking action to retain, the whole or part of the Collateral to the extent permitted by law.
Collateral, Secured Party, Security Interest, Account, Accession, Personal Property, Possession, Proceeds, Secured Party, Security Interest all have the same meaning as that term is defined in the PPS Act.
PMSI means a purchase money security interest as that term is defined in the PPS Act.
PPS Act means the Personal Property Securities Act 2009.
Privacy Act means the Privacy Act 1988 (Cth) including the National Privacy Principles, as amended.
Product or Goods means the products and goods supplied under these terms.
Insolvency Event means any of the following events:
(a) an application is made or a contract is made, proceedings are commenced or other steps are taken for the receivership, winding up, dissolution, official management or administration of the Purchaser;
(b) the Purchaser enters into an arrangement, compromise or composition or assignment for the benefit of its creditors or any class of its creditors;
(c) a receiver, a receiver and manager, liquidation, provisional liquidator, administrator, trustee in bankruptcy or similar officer is appointed to the Purchaser or any of its property or a distress, attachment or other form of execution is levied or enforced or if a mortgagee or chargee enters or takes possession of any of the Purchaser’s property.
5. Delivery
5.1 Any date or time nominated by the Supplier for delivery of the Goods is an estimate only and the Supplier will have no liability to the Purchaser for late delivery.
5.2 Delivery of the Goods will occur at the Supplier’s premises, unless otherwise If the Supplier agrees to a request from the Purchaser for Goods to be delivered at a place other than the Supplier’s premises, the Purchaser will be responsible for, and must indemnify the Supplier against all costs, expenses and liabilities associated with that delivery.
5.3 In the event of a dispute as to the time of delivery, delivery will be deemed to have occurred when the Goods left the Company’s premises.
5.4 The Purchaser must notify the Supplier in writing within three days of delivery of any shortfall, loss or damage to the Goods delivered, failing which the Supplier will have no liability for any such shortfall, loss or The Supplier must be given a reasonable opportunity to inspect the Goods in the same condition in which they were delivered.
6. Warranties
The Supplier does not accept liability for damages due to operator error, misuse, or reckless negligence on the part of the Purchaser following the successful execution of the commissioning of goods procedure.
The Supplier provides a warranty period of 12 months from date of delivery of the Goods in the event of non-conformity or defects, (subject to assessment by Supplier). No warranty will apply to damage to the Goods from mis-use, mis-handling, deliberate, reckless or negligent damage or use not in accordance with the Goods proper use and purpose.
The Purchaser must immediately notify the Supplier if the Goods or components are found to be defective and must immediately cease use of the Goods. If the Purchaser identifies irregularities or inconsistencies with respect to delivery or assembly procedure, the Purchaser must advise the Supplier in writing within 72 hours of the goods commission date.
The Purchaser agrees that the Grainline 30-day money back guarantee is not applicable to this contract and agrees that the Goods detailed in the invoice\contract cannot be returned either, under any circumstances unless goods are not of merchantable quality.
7. Exclusion/Limitation of liability
In so far as is possible all warranties, other than those warranties set out in these terms and conditions, whether by statute or common law in relation to the supply of goods and products by the Supplier are expressly negatived and do not apply. The Supplier is not liable to the Purchaser, and the Purchaser releases the Supplier, from any breach of contract or duty of care.
When goods and products are supplied by the Supplier which have been manufactured by a third party, the Supplier agrees to assign to the Purchaser on written request by the Purchaser, the benefit of any warranty or guarantee to the goods and products that the
manufacturer has granted to the Supplier under any contract or by implication or operation of law to the extent that the benefit of any warranty or guarantee is assignable.
The Purchaser acknowledges that the Supplier is not responsible for, and releases and discharges the Supplier from, any direct, indirect or consequential loss or expense suffered by the Purchaser or any third party, howsoever caused from the supply of any services and use of the goods and products including breach of statutory or common law warranties and negligence. If any dispute arises, as a result of the use of the goods or services, the Purchaser will exclude the Supplier from any dispute or claim, action or court proceeding. Further, the Purchaser agrees to indemnify the Supplier from and against all liability and losses (including costs on a full indemnity basis) which may be incurred by the Supplier as a result of any such dispute, action or court proceedings including any claim made by a third party.
To the extent permitted by law, the absolute limit of the Supplier liability under any condition or warranty that cannot be legally excluded is limited to the replacement or repair or re-supply of equivalent products or services. The Purchaser acknowledges that the Supplier is not responsible for, and releases the Supplier from, any direct, indirect or consequential loss or expense suffered by the Purchaser or any third party, howsoever caused from the supply and use of the goods and products.
Except as provided for in these Conditions or invoice or order, to the maximum extent permitted by law, all warranties, conditions, representations and guarantees (whether express or implied) in respect of the contract, the Goods or the Services are excluded.
The Purchaser agrees that it has satisfied itself as to the condition and suitability of the Goods for the Purchaser’s intended use. The Supplier makes no representation or warranty as to the suitability of the Goods for the Purchaser’s intended use.
8. Privacy
The Supplier may collect, use and disclose Personal Information about the Purchaser for the primary purpose of providing the Products to the Purchaser including but not limited to determining whether to accept an Account Application of the Purchaser, start, stop or limit the supply of the Products to the Purchaser, billing and account management. The Supplier may receive and disclose Personal Information or documents about the Purchaser to or from credit providers or credit reporting agencies for the purposes permitted under the Privacy Act, law enforcement agencies to assist them in prevention of criminal activity or as provided for in any Account Application.
9. Guarantee
Where the Purchaser is a corporation, the person executing the contract on behalf of the purchaser corporation:-
(i) warrants they have authority to execute the contract on behalf of the corporation purchaser; and
(ii) personally guarantees to the Supplier that the Purchaser will comply with all its obligations under this these terms and conditions and the invoice\contract at the time they should be complied with; and
(iii) agrees to indemnify and keep indemnified, the Supplier for any loss or damage the Supplier suffers as a result of the Purchaser not complying with its obligations under these terms and conditions and the invoice\contract.
The guarantee and indemnity in this clause is a continuing guarantee and indemnity and they do not come to an end until released in writing by the Supplier.
10. Governing Law
The parties agree to submit exclusively to the jurisdiction of the courts of New South Wales.