WHOLESALE TERMS & CONDITIONS
a.) We must pay for any goods by the date stated in the relevant invoice by electronic means or by direct debit if required by you or in cash, cheque, bank cheque, credit card accepted by you or free of any set off, counterclaim or any other deduction. You may allocate payments in any manner you choose.
b.) The price of all goods is the amount shown in any invoice and is exclusive of GST except where the price is expressed to be inclusive of GST.
c.) We will pay interest compounded monthly on any overdue account shown in any invoice at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) plus 2%.
d.) You may increase the price of any goods ordered by us at any time arising as a result of any increased costs passed on to you by any supplier of yours or as a result of any change of law, including increases in any taxes.
2. Risk and Title
a.) Risk in any goods passes to us on delivery.
b.) Title remains with you until we have paid you for all goods supplied in full and in cleared funds.
c.) Until title passes to us, we will hold any goods supplied to us on trust and as bailee for you.
d.) We agree that any proceeds of any sub-sale to any customer of ours will be held in trust in a separate account until the amount we owe to you at any time for those goods is paid to you. For the purposes of this clause, proceeds includes the sale price to any sub-buyer less any profit added by the buyer to the invoiced price of any goods or an amount equal to the proportion of the value of your goods in the product or mass calculated in accordance with Part 3.4 of the PPSA.
e.) We must store any goods belonging to you separately from other goods in our possession so as to prevent any deterioration and clearly mark them as your goods.
f.) We must comply with all applicable laws in relation to the transportation, delivery, handling and storage of any goods. Without limitation, any environmental and O H & S laws.
g.) We agree to instruct any customer or agent of ours in relation to the proper and safe handling, carriage or storage of any goods, including compliance with any O H & S or environmental laws.
a.) We agree that your Terms and Conditions current at the time of delivery apply to any order we place with you from time to time.
b.) Any order placed by us with you is irrevocable.
c.) Delivery to us will be at your premises or as requested by us, including any agent of ours. If not collected after 14 days of any nominated delivery date, we must pay all storage costs. You will not be liable for any delays. All expenses relating to delivery, insurance, transit or storage of goods after delivery to us will be at our cost.
d.) You may stop goods in transit whether or not delivery has been made to us if we are in default at any time.
e.) Once delivered goods may not be returned unless defective or damaged in transit. Claims for defective or damaged goods must given to you in writing within 7 days of delivery date or invoice date, whichever is the earlier. You will not be liable for any claim advised after that time. Claims are subject to inspection.
f.) We irrevocably authorise you and any of your lawful agents, at any reasonable time, to enter our premises or any premises occupied by us or our agents and re-take any goods and then to re-sell those goods and retain the proceeds of the sale without prejudice to your rights to claim the balance of all moneys due. We indemnify you in respect of any such entry. The provisions of this clause survive the termination of any security agreement that arises in respect of these Terms and Conditions.
4. SECURITY AGREEMENT
We agree that these Terms and Conditions, including any order and invoice covering any goods ordered by us, together constitute a security agreement for the purposes of the PPSA.
5. SECURITY INTEREST
5.1 We give you a security interest in:
(a) all goods supplied by you that are described in any invoice, delivery or shipping documentation of yours or order documentation that we give you. Without limitation, this includes any Bellproperty referred to in these Terms and Conditions;
(b) all present and future inventory and accounts as original collateral; and
(c) all present and future property of ours including real property. We agree that you may lodge a caveat against any real property. We agree to give you a mortgage in respect of any real property in registrable form if required by you.
(d) The security interest given by us is given as beneficial owner. If we are trustee of any trust, we acknowledge that the security interest given by us applies to the assets of the trust and our personal assets. We appoint you our attorney by way of security for the purposes of this clause and in respect of any enforcement powers.
5.2 Any security interest that arises under this clause is a continuing security interest. It applies to all real property, personal property and any proceeds. It is not extinguished or in any way diminished even if any goods or any part of them is processed or commingled with and becomes part of a product or a mass as part of a manufacturing, assembling or commingling process.
5.3 Any security interest arising secures the due and punctual payment of all moneys payable by us under these Terms and Conditions.
5.4 Any account arising by virtue of any sale of any goods supplied to us takes effect as a transfer.
5.5 You may register a financing statement, including any financing change statement, on the PPSR. If required by you, we will reimburse you for any costs and expenses and other charges incurred by you in registering them. We irrevocably waive any rights to receive a copy of any verification statement.
5.6 We acknowledge that until we have paid for all goods we are not the owner of those goods and, as such, if chapter 4 of the PPSA applies to these Terms and Conditions, then we contract out of the enforcement provisions referred to in s 115(1), except sections 120 and 121.
5.7 To the extent the law allows you need not give any notice required by the PPSA or any other law, including any notice mentioned in any of the enforcement provisions in chapter 4 of the PPSA.
The Buyer shall indemnify and keep indemnified and hold Bellharmless from and against all liabilities and losses, damages, costs or expenses incurred and suffered by Bell , and from and against all actions, proceedings, claims or demands made against Bell , arising from one or more of the following:
(a) as a result of the Buyer’s failure to company with any laws, rules, standards or regulations applicable in relation to the goods or the use of the goods;
(b) as a result of any other negligence, breach of contract or other breach of duty by the Buyer; or
(c) as a result of Belladhering to instructions that the Buyer has given Bellaboutthe goods.
7.1 If an Event of Default occurs or is continuing, you may immediately enforce these Terms and Conditions. Without limitation this includes:
(a) retaking possession of any goods not paid for by us;
(b) suspending delivery of any goods on order and/or refusing to process any unfulfilled order.
(c) enforcing any security interest.
(d) requiring payment in cash on delivery.
(e) requiring payment of any proceeds held by us in a separate account or otherwise.
(f) appointing a receiver and manager of any of our real or personal property that is subject to a security interest. We agree that any such receiver and manager has the powers conferred by the Corporations Act.
7.2 The powers exercisable by you are those given by these Terms and Conditions, including the PPSA, at law or in equity.
7.3 In the event that we have not been paid for the sale of your goods by any customer of ours, at your option, you may in addition to the powers in s 120 of the PPSA, collect that account on giving our customer notice in writing to that effect. You will be entitled to issue proceedings in our name against our customer for recovery of that account for your benefit. We indemnify you in respect of any such action and proceedings. For the purposes of this clause, we must keep proper records and accounts in respect of such unpaid sales, including the dates of sale, price, amount and identity of such customer and your goods.
7.4 You may in your discretion despite s 14(6) of the PPSA apply any moneys received in respect of any pmsi obligations of ours on a pro rata basis.
7.5 We will pay your enforcement costs and those of any agent of yours including legal costs on an indemnity basis.
8. PERMITS AND NOTICES
Bell agrees to make all reasonable inquiries concerning any notices, permits or fees concerning the goods that are required by legislation, regulations or by-laws. Bellagrees to obtain such notices or permits unless otherwise agreed in writing. Where Bell ’s reasonable inquiries fail to reveal any such notices, permits or fees any costs associated or paying for them or for failing to do so shall be to the Buyer’s account.
9. BILLING OF LADING
9.1 A Bill of Lading or Shipping Receipt shall be evidence of the time of shipment, and that goods were in good order and condition, and may contain special conditions required by the carrier, and need not necessarily provide for direct shipment. Production of a Bill of Lading or Shipping Receipt received by Bellshall be prima facie evidence of the signature thereto and of the authority of the signer. Rejection by the Buyer shall at Bell ’s option be deemed to constitute shipment and or delivery and on rejection Bellmay at its option sue for the price but such right shall be without prejudice to any of the other rights or remedies of Bellunder this contract or the general law.
9.2 Where Bellon-sells documents to Buyer who collects container directly, unpacks stock and returns the empty container - Where Bellon-sells documents to Buyer who collects container directly, unpacks stock and returns the empty container, the Bill of Lading shall be consigned ‘to order of the consignee’ with Bellnamed as the notify party. The Buyer must inform Bellimmediately of any damages to or discrepancies in stock counts and provide Bellwith a supporting count and condition / warehouse report for the particular container. The number of free days to return the empty container shall be governed by the nominated carrier on the Bill of Lading and the precise free time and empty depot location should be sought from Bellor the carrier itself. Any detention shall be payable by the Buyer.
10. FREIGHT AND INSURANCE
Any price quoted is based on ruling rates of freight and insurance. Any rise or fall shown by the amounts actually paid for freight and insurance are to be for Buyer’s account.
11. RIGHT TO DEVIATE
Vessels shall have the right to deviate and call at any ports. Shipment means an offer of goods for carriage to vessel at port of shipment. The date of shipment or loading means the time of commencement of either operation. Shipment is permitted in more than one vessel providing other terms and conditions under this contract are complied with. Tran-shipment is permitted.
12. NEGATIVE PLEDGE
12.1 We agree not to grant any security interest over any of our personal property except in the ordinary course of business.
12.2 We agree not to grant a security interest in any account as original collateral under s 64 of the PPSA.
13. FORCE MAJEURE
You are not liable for any delay or the failure to perform any obligation in our favour arising as a result of a force majeure event.
Any security agreement that arises under these Terms and Conditions is confidential. Despite this, we agree that you may disclose any information concerning us to any interested person under s 275(6) of the PPSA.
15.1 We will tell you if we change our name, any of our officers or management, our registered office, become a trustee of any trust or, cease to be so, or the constitution of any partnership of which we are a member changes.
15.2 Any certificate signed by you, any director or any person authorised by you as to the amount due and payable by us is sufficient evidence of our liability to you under these Terms and Conditions as at the date of any such certificate unless proven wrong.
15.3 If any provision of these Terms and Conditions is unenforceable for any reason, it will not invalidate any other provisions that will remain in full force and effect despite that invalidity.
15.4 These Terms and Conditions contain the entire agreement in respect of the supply of goods to us.
15.5 You may at any time set off any amount you owe us against any amount payable by us to you whether or not the amount we owe you is due and payable or actually or contingently payable by us.
16. GOVERNING LAW
These Terms and Conditions are governed by the laws of Victoria. We submit to the non-exclusive jurisdiction of any Victorian court and waive any rights to claim that courts there are an inconvenient forum.
17.1 Any notice required under these Terms and Conditions may be given by any party, any director or authorised person of that party.
17.2 Any notice may be given at that party’s registered address or other address stipulated in application in connection with these Terms and Conditions or as notified in writing for the purposes of this clause. Without limitation, this includes any electronic address notified to the other party.
For the purposes of any payment obligation of ours under these Terms and Conditions, time is of the essence.
19. SURVIVAL OF INDEMNITIES
19.1 Each indemnity and payment obligation of ours under these Terms and Conditions is a continuing obligation, separate and independent from all other obligations, and survives termination of these Terms and Conditions.
19.2 It is not necessary for you to incur expense or make a payment before enforcing a right of indemnity.
20. EXCLUSION OF IMPLIED TERMS
To the extent permitted by law, you exclude all conditions, warranties, terms and consumer guarantees implied by law (including the Australian Consumer Law) arising in connection with a supply of goods or services. To the extent permitted by law, you limit your liability in your discretion to replacing the goods or supplying equivalent goods, or, in the case of services, by supplying the services again.
21. LIMITATION OF LIABILITY
To the extent permitted by law, you exclude any liability in contract, tort (including negligence) or otherwise, in connection with the supply of goods and services for an indirect damages or losses, or for any special, punitive or exemplary damages. This includes any liability for a claim that the goods are not fit for a particular purpose, except where the goods are consumer goods or services in which case your liability is limited as under clause 20.
Event of Default means:
a.) we fail to pay when due any moneys owing to you under these Terms and Conditions.
b.) we give any third party a security interest in accounts as original collateral in respect of the proceeds of any collateral covered by a security interest under these Terms and Conditions.
(c) an Insolvency Event occurs or is continuing.
(d) we breach any other provision of these Terms and Conditions and fail to cure it within 5 business days notice from you to do so.
Default has a corresponding meaning.
GST means any goods and services or similar tax, together with any related interest, penalties, fines or other charge. Tax invoice, taxable supply and value have the meaning given to them by the GST Law.
GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Goods mean any goods you supply to us that are described in any invoice, quotation, work authorisation or any other documents you provide us or any order we give you, whether on consignment or otherwise, under these Terms and Conditions
Guarantor means that person, or entity, who agrees to be liable for our debts whether on a principal debtor basis or who is otherwise a surety of ours.
(a) An administrator is appointed to us or any guarantor.
(b) Except for the purpose of a solvent reconstruction or amalgamation previously approved by you:
(A) an application or an order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting, an application to a court or other steps are taken for:
(i) our winding up, dissolution or administration or any guarantor; or
(ii) we or any guarantor entering into an arrangement, compromise or composition with or assignment for the benefit of our creditors or a class of them; or
(B) we cease, suspend or threaten to cease or suspend the conduct of all or a material part of our business or dispose of or threaten to dispose of a material part our assets.
(c) We or any guarantor is, or under legislation is presumed or taken to be, insolvent or cease to carry on our business.
(d) A receiver, receiver and manager, administrative receiver or similar officer is appointed in respect of us or any guarantor.
(e) Any distress, attachment, execution or other legal process is levied, enforced or sued out on or against all or any material part of our assets or any guarantor and is not discharged or stayed within 20 business days.
(f) A security interest becomes enforceable or is enforced.
PPSA means the Personal Property Securities Act 2009 (Cth).
The expressions account, collateral, financing statement, financing change statement, inventory, proceeds, purchase money security interest (pmsi), security agreement, security interest, verification statement have the meanings given by the PPSA. Without limitation, security interest bears its natural meaning. It also applies to all land and licences and personal property that is not personal property covered by the PPSA.
Terms and Conditions mean these terms and conditions, as amended, modified, consolidated or replaced from time to time and located on your website current at the time of delivery. They apply to any goods or services supplied or to be supplied to us or any third party at our request.
Buyer means we, our or us.
(a) The singular includes the plural and the converse.
(b) A gender includes all genders.
(c) Defined terms include their corresponding grammatical forms.