Trading Terms and Conditions
1. INTERPRETATION
In these Terms and Conditions unless the context otherwise requires:
(a) “Applicant” means the party or parties defined as the Applicant in the Credit Application;
(b) “Agreement” means the agreement constituted by the acceptance of this Credit Application (including the Terms and Conditions) by SFC;
(c) “SFC” means SFC Australia Pty Limited (ABN 64 065 678 104) (ACN 065 678 104) which is the proprietor of the trading SFC Fasteners;
(d) “Conditions” / “Terms”/ “Terms and Conditions” means these Trading Terms and Conditions forming part of the Agreement;
(e) "goods" means goods supplied or ordered under this Agreement;
(f ) “GST” means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge;
(g) “including” and similar expressions means “including, but not limited to”;
(h) “Maximum Credit Limit” means the sum which is the aggregate maximum credit limit to be extended to the Applicant by SFC. This, however, does not limit the liability of the Applicant and Guarantors to SFC;
(i) “Payment” means any amount payable under or in connection with a Quotation or Sales Invoice including any amount payable by way of indemnity, reimbursement or otherwise (other than GST) and includes the provision of any non-monetary consideration;
(j) “Purchase Price” means the price for the goods set out in the relevant Quotation or Sales Invoice;
(k) “Quotation” means the form of quotation submitted by SFC to the Applicant in which these Terms are deemed to be incorporated;
(l) “Sales Invoice” means the sales invoice issued by SFC to the Applicant in which these Terms are or are deemed to be incorporated;
(m) “Special Goods” means any goods which are, at the Applicant’s request, embellished, embroidered, printed, machined, cut-to-size or specifically ordered for the Applicant.
2. ACCEPTANCE OF THE APPLICATION
2.1 Credit will not be provided until SFC accepts this Application. Acceptance may be relayed by written notification given by SFC.
2.2 If SFC accepts this Application, the provision of Goods or Services and credit facilities to the Applicant are subject to the Terms and Conditions.
2.3 If the Application is made by more than one Applicant, each Application is jointly and severally liable under this Agreement.
3. REPRESENTATIONS
3.1 The Applicant (and the Directors and Partners of the Applicant, if applicable) and the Guarantors (if applicable) warrant as to the correctness of the information which it/they has/have furnished to SFC in this Application, and acknowledges that SFC has relied upon this information in determining whether or not to grant credit, and the extent thereof the Applicant.
4. CHARGE
4.1 The Applicant and each of the Guarantors, if any, hereby jointly and severally charge all their right, title and interest in the property or properties referred to in the Application as the Trading Address and Private Addresses that may be owned by any of them and also any land that they own currently or may acquire in the future solely or jointly or have or become to have a beneficial interest in, in favour of SFC, with due and punctual observance of all of the obligations of the Applicant. The Applicant indemnifies SFC against all expenses and legal costs (on an indemnity basis) for preparing, lodging and removing any caveat.
4.2 The Applicant and each of the Guarantors, if any, hereby acknowledge that SFC may at its discretion register and lodge an absolute caveat(s) on such property or properties in respect of the interest conferred on it under this clause 4. Such registration of a caveat by SFC over the Applicant's property or properties must not be challenged by the Applicant in any way whatsoever, and the Applicant agrees not to take any steps in filing a "lapsing notice" via the Land Titles Office to have the caveat removed, until such time that the Applicant has paid all monies owing by it to SFC as claimed from time to time.
5. ASSIGNMENT
The Applicant and the Guarantors must not assign or transfer any of their rights or obligations in connection herewith to any other person whatsoever.
6. CHANGE IN CONTROL
6.1 The Applicant must advise SFC in writing no later than fourteen (14) days before a charge in effective control of the Applicant or of any change or alteration of any particulars contained in this Application (if applicable).
6.2 If the Applicant signs the Application as the trustee of any trust (the “Trust”), the Applicant is personally liable for the performance of all covenants contained in the Agreement and agrees that SFC’s right of recourse pursuant to this Agreement shall not be limited to the Applicant’s assets but shall extend the assets of the Trust.
7. TERMS OF PAYMENT
7.1 Unless SFC has agreed in writing to extend credit to the Applicant, the Applicant must pay the Purchase Price in full on delivery of goods or services.
7.2 Where SFC has agreed in writing to extend credit to the Applicant, Payment to SFC for goods delivered is due within 30 calendar days of the end of the month in which the Applicant is invoiced for the goods unless agreed otherwise in writing by SFC.
7.3 The Applicant is not entitled to make any deduction from amounts owing to SFC in respect of any set off or counterclaim to be held back for retention.
8. INSPECTION AND ACCEPTANCE
8.1 The Applicant must inspect all goods upon delivery and within 48 hours of delivery give notice with full details and description to SFC named in the relevant Sales Invoice if the Applicant alleges that the goods are not in accordance with the Applicant’s order. Failing such notice, the goods shall be deemed to have been delivered to and accepted by the Applicant.
8.2 When any non-compliance with the Applicant's order is accepted by SFC, SFC may, at its option, replace the goods, or refund the price of the goods.
9. RETURNS
9.1 Unless otherwise agreed, returns other than required pursuant to the ACL must be approved by SFC named in the relevant Sales Invoice. These authorised returns must be freight prepaid and will only be accepted if they are in a saleable condition. SFC reserves the right to charge a handling fee [equal to 10% of the price of the goods] for goods returned under this provision. Unless required by the ACL, Special Goods are not returnable.
9.2 The various trading divisions of SFC may have separate returns policies, to which the Applicant should refer.
10. QUOTATIONS
10.1 Unless previously withdrawn, a Quotation is valid for 30 days or such other period as stated in it whichever period is the lesser. A Quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until the Applicant’s order has been accepted in writing by SFC.
10.2 SFC is not bound by any conditions attaching to the Applicant’s order or acceptance of a Quotation and, unless such conditions are expressly accepted by SFC in writing, the Applicant acknowledges that the Applicant’s conditions are expressly negatived.
11. PRICING
The parties agree that the Purchase Price does not include GST.
12. PASSING OF PROPERTY AND RISK
12.1 Goods supplied by SFC to the Applicant shall be at the Applicant’s risk immediately upon delivery to the Applicant, into the Applicant’s custody or at the Applicant’s direction (whichever happens first).
12.2 Property in the goods supplied by SFC to the Applicant under these Terms shall not pass to the Applicant until those goods and other goods have been paid for in full.
12.3 Until SFC receives full payment in cleared funds for all goods and services supplied by it to the Applicant, as well as all other amounts owning to SFC by the Applicant: (i) the Applicant shall store the goods in a manner which shows clearly that they are the property of SFC; and (ii) the Applicant may sell the goods in the course of its business and shall account to SFC for the proceeds of sale (including any proceeds from insurance claims). These proceeds must be kept in a separate bank account with a bank to whom the Applicant has not given security however failure to do so will not affect the Applicant's obligations as trustee.
12.4 In addition to SFC's rights under the PPSA, the Applicant irrevocably authorises SFC at any time to enter onto any premises upon which: (i) SFC’s goods are stored to enable SFC to inspect the goods and/or if the Applicant has breached these Terms, reclaim the goods; (ii) the Applicant’s records pertaining to the goods are held to inspect and copy such records.
12.5 The Applicant and Seller agree that the provisions of this clause apply notwithstanding any arrangement under which SFC grants credit to the Applicant.
13. SUPPLY
SFC reserves the right to suspend or discontinue the supply of goods to the Applicant without being obliged to give any reason for its action.
14. PART DELIVERIES
SFC reserves the right to make part deliveries of any order, and each part delivery shall constitute a separate sale of goods upon these Terms. A part delivery of an order shall not invalidate the balance of an order.
15. SHIPMENT AND DELIVERY
15.1 The means of delivery is at SFC's sole discretion.
15.2 SFC may deliver the goods to the Applicant’s premises in accordance with SFC’s usual practices.
15.3 If SFC directs the Applicant to collect the goods: (i) the Applicant must collect the goods within 7 days of being advised they are ready; (ii) if the Applicant does not collect the goods within this time, the Applicant is deemed to have taken delivery of the goods and is liable for storage charges payable monthly on demand.
16. CURRENCY
Where goods are imported into Australia, any adverse variation in the price arising from fluctuation in exchange rates between the date of the Applicant’s order and the date of payment by SFC will be to the Applicant’s account.
17. CONTINGENCIES
Any charge, duty, impost, sales tax or other expenditure which is not applicable at the date of Quotation or Sales Invoice but which is subsequently levied upon SFC in relation to a Quotation or Sales Invoice as a result of the introduction of any legislation, regulation or governmental policy, shall be to the Applicant’s account.
18. CHARGES BEYOND POINT OF DELIVERY QUOTED
Unless otherwise agreed in writing, if SFC prepays freight, insurance, custom and import duties (if any), landing and delivery charges and all other charges in connection with shipment and delivery of the goods, then any such charges shall be to the Applicant’s account.
19. SELLER'S CANCELLATION
If SFC is unable to deliver the goods, then it may cancel the Applicant's order (even if it has been accepted) by written notice to the Applicant.
20. APPLICANT’S CANCELLATION
20.1 To the greatest extent permitted under law, the Applicant shall have no right to cancel an order which has been accepted by SFC unless otherwise agreed in writing. If a right of cancellation is granted to the Applicant, such right of cancellation must be exercised in accordance with the relevant terms of cancellation and by notice in writing from the Applicant to SFC with which the order has been placed not later than 7 days prior to the estimated date of shipment by the manufacturer or that Seller as the case may be.
20.2 Unless otherwise agreed between the Applicant and Seller, upon cancellation prior to shipment any deposit paid by the Applicant shall be forfeited to the manufacturer or Seller (as the case may be).
20.3 Despite the cancellation of any order for any reason, the Applicant must still purchase from SFC any goods ordered by the Applicant which constitute Special Goods (whether in store, in transit or being manufactured) which were procured or ordered by SFC before such cancellation, unless otherwise agreed in writing by SFC.
21. ALTERATION TO CONDITIONS
SFC may, at any time and from time to time, alter these Terms and Conditions by providing notice to the Applicant.
22. WAIVER
SFC's failure to enforce any of these Terms and Conditions shall not be construed as a waiver of any of SFC's rights.
23. WRITTEN NOTICE
A notice must be in writing and handed personally or sent by email, facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed received on confirmation of successful transmission.