1 - Highgate Industries Wholesale Pty Ltd Terms & Conditions of Trade
1.1 - Definitions
In these Terms:
“Highgate” shall mean
a) - Highgate Industries Wholesale Pty Ltd ABN 46 165 996 172;
b) - its Related Entities; and
c) - their respective successors and assigns; and
d) - any other person acting on behalf of and with the authority of Highgate.
“Consequential Loss” includes loss of use, lost production, lost income or profits, loss of opportunity, lost savings, increased or wasted expenses, delay or lost time, loss of or damage to goodwill, increased operating costs, wasted or increased financing costs, loss of or damage to data or records, loss of or unavailability of or damage to tangible or intangible property, claims made against the Customer by others, losses or costs or expenses associated with identification, investigation, assessment, repair, replacement or servicing and any other economic loss or damage and any other special, indirect or consequential loss or damage.
“Customer” means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by Highgate to the Customer.
“Guarantor” means that person(s) who agrees to be liable for the debts of the Customer and “you” means the Guarantor.
“Goods” means goods supplied by Highgate to the Customer (and where the context so permits shall include any supply of Services) and described on the invoices, quotation, work authorisation or any other forms as provided by Highgate to the Customer.
“person” includes a firm, unincorporated association and corporation;
“Price” means the price payable for the Goods as agreed between Highgate and the Customer in accordance with clause 4 of these Terms.
“Related Entities” means:
a) - “related entities” as defined in the Corporations Act 2001 (Cth);
b) - Highgate Industries (Wholesale) ABN 38 187 733 863;
c) - Acura Group Australia Pty Ltd ABN 55 165 991 784; and
d) - Acura Group ABN 80 385 692 209 represented by Acura Group Pty Ltd ACN 119 381 163;
“Services” means all services supplied by Highgate to the Customer and includes any advice or recommendations.
“Terms” means these terms and conditions of trade.
2 - Competition and Consumer Act (Cth) (“CCA”) and Fair Trading Act (“FTA”)
2.1 - Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3 - Acceptance
3.1 - Any request or order received by Highgate from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods shall constitute acceptance of these Terms.
3.2 - Where the Customer comprises more than one person then each of those persons shall be jointly and severally liable under these Terms.
3.3 - Upon acceptance of these Terms by the Customer the Terms are binding and can only be amended with the written consent of Highgate.
3.4 - The Customer shall give Highgate not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Highgate as a result of the Customer’s failure to comply with this clause.
3.5 - Goods are supplied by Highgate on these Terms to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these Terms.
3.6 - Subject to clause 2.1, the sale between Highgate and the Customer and to the extent permissible by law, it is the Customer’s responsibility to ensure the Goods purchased are suitable and safe for the intended use and that the Customer has the necessary expertise to make this decision.
3.7 - Highgate is not obliged to accept any order from the Customer. No tender or quotation from the Highgate obliges Highgate to accept any order from the Customer. But if the Customer does place an order with Highgate then it becomes binding from the moment the Highgate accepts the order even if the Highgate does not tell the Customer that it has been accepted.
4 - Price and Payment
4.1 - At Highgate’s sole discretion the Price shall be either:
(a) - as indicated on invoices provided by Highgate to the Customer in respect of Goods supplied; or (b) - the Highgate’s quoted Price (subject to clause 4.2) which shall be binding upon Highgate provided that the Customer shall accept Highgate’s quotation in writing within thirty (30) days.
4.2 - Highgate reserves the right to change the Price in the event of any variation to Highgate’s quotation.
4.3 - At Highgate’s sole discretion a deposit may be required for the purchase of any Goods.
4.4 - At Highgate’s sole discretion:
(a) - payment shall be due before delivery of the Goods; or
(b) - payment for approved Customers shall be due thirty (30) days following the end of the month in which goods are supplied.
4.5 - Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 - Payment will be made by cash, or by bank cheque, or by direct credit, or by any other method as agreed to between the Customer and Highgate.
4.7 - GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
4.8 - Clerical errors in computation, typing or otherwise of price list, catalogue, quotation, acceptance, offer, invoice, delivery docket, credit note or specification of Highgate shall be subject to correction. Highgate may complete any blanks on any relevant document, on the Customer’s behalf.
5 - Delivery of Goods
5.1 - At Highgate’s sole discretion delivery of the Goods shall take place when:
(a) - the Customer takes possession of the Goods at Highgate’s address; or
(b) - the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
5.2 - At Highgate’s sole discretion the costs of delivery are:
(a) - in addition to the Price; or
(b) - for the Customer’s account.
5.3 - The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then Highgate shall be entitled to charge a reasonable fee for redelivery.
5.4 - Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of these Terms.
5.5 - Highgate may deliver the Goods by separate deliveries. Each separate delivery shall be invoiced and paid in accordance with the provisions in these Terms.
5.6 - The failure of Highgate to deliver shall not entitle either party to treat the contract for purchase of Goods as repudiated.
5.7 - Highgate shall not be liable for any loss or damage whatever due to failure by Highgate to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Highgate.
5.8 - Delivery times are estimates only and Highgate is not liable for delays in delivery. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Highgate may wait until it is again possible for it to perform its obligations in Highgate’s usual way without additional difficulty or expense and Highgate is not liable for any delay which results.
5.9 - Should there be any variation in details, sizes and quantity of Goods, delivery instruction or any other item or matter on which a quotation or invoice is based, Highgate reserves the right to revise and amend the contract price accordingly.
6 - Risk
6.1 - If Highgate retains title to the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 - If any of the Goods are damaged or destroyed following delivery but prior to title passing to the Customer, Highgate is entitled to receive all insurance proceeds payable for the Goods. The production of these terms by Highgate is sufficient evidence of Highgate’s rights to receive the insurance proceeds without the need for any person dealing with Highgate to make further enquiries.
7 - Title
7.1 - Title in and to any Goods will not pass to the Customer until payment in full for those Goods is made.
7.2 - The Customer acknowledges that until title in and to the Goods passes to the Customer in accordance with this clause:
(a) - the Customer holds the Goods as bailee for Highgate;
(b) - the Customer must store the Goods separately and in such a manner that they are clearly identified as Highgate’s property; and
(c) - Highgate will be entitled at any time until title in and to the Goods passes to the Customer to demand the return of the Goods and, except where the Customer is an individual, Highgate will be entitled without notice to the Customer and without liability to the Customer to enter (or have its representatives enter) any premises occupied by the Customer in order to search for and remove the Goods.
7.3 - The Customer acknowledges that if it sells, leases or otherwise deals with the Goods or products incorporating the Goods before title in and to the Goods has passed to the Customer in accordance with this clause, the Customer will hold the proceeds of sale, lease or such dealing on trust for Highgate in a separate account.
7.4 - If title in and to the Goods has not passed to the Customer in accordance with this clause 7, the Customer’s implied right to sell, use or consume the Goods will immediately terminate upon the happening of any of the following events in respect of the Customer:
(a) - the Customer makes default in any payment or is unable or state that the Customer is unable to pay its debts as they fall due; or
(b) - where a corporation if under administration, provisional liquidation or liquidation as if a controller has been appointed; or
(c) - if an individual, being an insolvent under administration.
7.5 - The Customer acknowledges that Highgate has a security interest (for the purposes of the Personal Property Securities Act 2009 (“PPSA”) in the Goods and any proceeds described in clause 7.3 until title passes to the Customer in accordance with this clause 7.
7.6 - The Customer agrees, at its cost in all things, to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Highgate ask and consider required for the purposes of:
(a) - ensuring that the security interest is enforceable, perfected and otherwise effective, including if applicable, as a purchase money security interest;
(b) - enabling Highgate to apply for any registration, complete any financing statement or give any notification, in connection with the security interest so that it has the priority it requires; or
(c) - enabling Highgate to exercise its rights in connection with the security interest.
7.7 - The Customer agrees to pay or reimburse Highgate’s reasonable costs in connection with anything required to be done under this clause 7.
7.8 - Highgate need not give any notice under the PPSA (including a notice of verification statement) unless the notice is required by the PPSA and the requirement to give it cannot be excluded.
7.9 - The parties agree that they are not required to disclose any information of the kind referred to in Section 275(1) of the PPSA. If there is any inconsistency between Highgate’s rights under this clause and its rights under Chapter 4 of the PPSA, this clause prevails.
8 - Defects
8.1 - The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Highgate of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote.
8.2 - The Customer shall afford Highgate an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way.
8.3 - If the Customer shall fail to comply with clauses 8.1 and 8.2 the Goods shall be presumed to be free from any defect or damage.
8.4 - For defective Goods, which Highgate has agreed in writing that the Customer is entitled to reject, Highgate’s liability is limited to either (at Highgate’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the CCA or the FTA of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion, either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.5 - Highgate will only recognize a claim under clause 8.4 in respect of a defect in the Goods which is not apparent if the Customer gives due notice to Highgate in writing within 12 months after supply by Highgate of the relevant Goods. The Highgate’s contact details are as stated on this document. The notice must state the warranty under which the Customer is claiming and what has happened that put Highgate in breach of the warranty. All warranty claims must be supported by a proof of purchase.
8.6 - In relation to the supply of defective Services then to the extent permissible at law and at Highgate’s option either to supply the Services again or pay the cost of having the Services supplied again.
9 - Returns
9.1 - Returns will only be accepted as set out on our invoices and provided that:
(a) - the Customer has complied with the provisions of clause 8.1; and
(b) - Highgate has agreed in writing to accept the return of the Goods; and
(c) - the Goods are returned at the Customer’s cost (a pick up fee may apply) within seven (7) days of the delivery date; and
(d) - Highgate will not be liable to Goods which have not been stored or used in a proper manner; and
(e) - the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 - Highgate may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15.0%) of the value of the returned Goods plus any freight.
10 - Default & Consequences of Default
10.1 - Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of one percent (1.00%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.
10.2 - If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Highgate from and against all costs and disbursements incurred by Highgate in pursuing the debt including legal costs on a solicitor and own client basis and Highgate’s collection agency costs.
10.3 - Without prejudice to any other remedies Highgate may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Highgate may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Terms. Highgate will not be liable to the Customer for any loss or damage the Customer suffers because Highgate has exercised its rights under this clause.
10.4 - If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
10.5 - Without prejudice to Highgate’s other remedies at law Highgate shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Highgate shall, whether or not due for payment, become immediately payable in the event that:
(a) - any money payable to Highgate becomes overdue, or in Highgate’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) - the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) - a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
11 - Cancellation
11.1 - Highgate may cancel any contract to which these Terms apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Highgate shall repay to the Customer any sums paid in respect of the Price. Highgate shall not be liable for any loss or damage whatever arising from such cancellation.
11.2 - In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Highgate (including, but not limited to, any loss of profits) up to the time of cancellation.
12 - Privacy Act 1988
12.1 - When used in this clause 12, a term defined in the Privacy Act 1988 (“Privacy Act”) has the same meaning.
12.2 - The Customer and the Guarantor/s agree for Highgate to obtain from a credit reporting body credit reporting information about the Customer and Guarantor/s in relation to credit provided by Highgate.
12.3 - The Customer and Guarantor/s acknowledge that:
(a) Highgate may disclose personal information to the credit reporting body, National Credit Insurance (Brokers) Pty Ltd which is contactable using the following details:
Level 2, 164 Grenfell Street, Adelaide, SA, 5000
(b) - Highgate may collect personal information from credit reporting bodies and/or credit providers in the circumstances and for the purposes set out in clauses 12.2 and 12.5 below;
(c) - Highgate collects your personal information for the purposes of:
(i) - assessing your application for credit under these Terms;
(ii) - obtaining credit reporting information from a credit reporting body; and
(iii) - those purposes specified in clause 12.9 below;
(d) - if the Customer and Guarantor/s do not provide the personal information requested by Highgate (including the personal information required in the application for credit), Highgate may not be able to:
(i) - process that application which may lead to Highgate refusing to provide credit to the Customer;
(ii) - provide the service the Customer requested; and/or
(iii) - process or respond to the Customer’s request;
(e) - Highgate may disclose your personal information to credit providers and credit reporting agencies in accordance with these Terms;
(i) - the Customer and Guarantor/s may access and/or seek correction of the personal information of the Customer and Guarantor/s held by Highgate;
(ii) - the Customer and Guarantor/s may complain about a failure by Highgate to comply with the Australian Privacy Principles, Part IIIA of the Act and any privacy related code of conduct applicable to Highgate; and
(iii) - Highgate will deal with any complaint referred to in clause 12.3(f)(ii) above; and
(g) - Highgate is not likely to disclose the personal information of the Customer and Guarantor/s to overseas recipients or entities that do not have an Australian link.
12.4 - For the avoidance of doubt, references in clause 12.3 to “personal information” include credit information and credit eligibility information (where applicable).
12.5 - The Customer and the Guarantor/s consent to Highgate exchanging credit eligibility information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in credit reporting information issued by a credit reporting body for the following purposes:
(a) - to assess an application for credit by the Customer; and/or
(b) - to notify those credit providers of a default by the Customer; and/or
(c) - to exchange credit eligibility information with other credit providers about the status of the Customer’s credit account with Highgate, where the Customer is in default with other credit providers; and/or
(d) - to assess the credit worthiness of the Customer and/or Guarantor/s.
12.6 - The Customer consents to Highgate being disclosed credit reporting information about the Customer by a credit reporting body for commercial credit related purposes.
12.7 - The Customer consents to Highgate disclosing credit eligibility information about the Customer to the Guarantor/s for the purpose of the Guarantor/s considering whether to offer to act as guarantor/s in relation to the credit applied for under these Terms or offer security for that credit.
12.8 - The Guarantor/s consent/s to Highgate being disclosed credit reporting information about the Guarantor/s by a credit reporting body for credit guarantee purposes.
12.9 - The Customer consents to personal information and/or credit information provided by the Customer being used by Highgate for the following purposes and for any other purposes as shall be agreed between the Customer and Highgate from time to time:
(a) - provision of Goods; and/or
(b) - marketing of Goods by Highgate, its agents or distributors in relation to the Goods; and/or
(c) - analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) - processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) - enabling the daily operation of the Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods; and/or
(f) - any other use that is permitted or required by law.
13 - Insurance and Indemnity
13.1 - It is the Customer’s responsibility to effect whatever insurance cover it requires at the Customer’s expense.
13.2 - The Customer shall fully indemnify and keep indemnified Highgate in respect of any and all losses, damages, awards, claims, costs (including legal costs on a full indemnity basis and administration costs), expenses, proceedings, actions and any other losses and/or liabilities howsoever incurred to the extent that they result from a breach by the Customer of its obligations under any contract (including these Terms) or of its duty of care or from an act or acts of negligence or wilful misconduct on the part of the Customer.
14 - No other representations.
14.1 - Subject to clause 2.1, the Customer acknowledges that:
(a) - it has not relied on any representation made or implied by Highgate or arising out of or implied by its conduct, nor upon any description, illustration or specification contained in any document produced by Highgate, including any catalogue or publicity material, unless made in writing for the purposes of this transaction and signed by one of Highgate’s directors;
(b) - to the extent that Highgate may have made or implied, or by conduct given rise to or implied any representation that is not expressly stated in these conditions, the Customer is not proceeding in reliance on the representation because the Customer has had and taken the opportunity to independently check and form its own view about the significance, and the accuracy or otherwise, of the representation; and
(c) - without limitation, it is not relying on being able to make any claim against Highgate, for any representation made or conduct occurring before, under or in connection with any order of Goods or Services, beyond the claims that can be made, and the limits applying, as provided in these Terms.
15 - Security for Obligations:
15.1 - The Customer charges for the due and punctual performance of all obligations under these Terms, all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all real property.
15.2 - The Customer agrees, on request by Highgate, to execute any documents and do all things necessary required by Highgate to register a mortgage over any real property.
15.3 - The Customer must indemnify Highgate against all costs and expenses incurred by Highgate in connection with the preparation and registration of any mortgage under clause 15.2.
15.4 - The Customer consents unconditionally to Highgate lodging a caveat or caveats noting its interest as a charge holder in any real property.
16 - General
16.1 - If any provision of these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 - These Terms and any contract to which they apply shall be governed by the laws of South Australia and are subject to the jurisdiction of the courts of South Australia.
16.3 - Highgate shall be under no liability whatever to the Customer for any Consequential Losses.
16.4 - In the event of any breach of any contract to which these Terms apply by Highgate the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5 - The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by Highgate.
16.6 - Highgate may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.7 - The Customer agrees that Highgate may review these Terms at any time. If, following any such review, there is to be any change to these Terms, then that change will take effect from the date on which Highgate notifies the Customer of such change.
16.8 - Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
16.9 - The failure by Highgate to enforce any provision of these Terms shall not be treated as a waiver of that provision, nor shall it affect Highgate’s right to subsequently enforce that provision.
16.10 - The Customer must not assign, or otherwise deal with these Terms without the prior written consent of Highgate.
17 - Guarantee and Indemnity
17.1 - By signing this document, you could become liable to pay us:
(a) - under the guarantee in clause 17.4; and
(b) - under the indemnity in clause 17.5.
17.2 - You are liable for all obligations under this guarantee and indemnity both separately on your own and jointly with any one or more other persons named in these Terms as a “Guarantor”.
17.3 - By signing this document, you ask us to give or to continue giving trade credit to the Customer, whether alone or with any other person, and you give Highgate this guarantee and indemnity in return for it agreeing to do so.
17.4 - You guarantee that the Customer will pay Highgate all amounts payable to Highgate when they are due. Your guarantee continues until all these amounts have been paid in full. The amounts which the Customer owes Highgate at any time include:
(a) - all amounts which at that time the Customer is or may become actually or contingently liable to pay to us for Goods supplied to the Customer; and ‘
(b) - all amounts which we are entitled at that time to recover or claim from the Customer for any reason; and
(c) - all amounts which at that time the Customer owes, or is liable for, to Highgate because it performs an agreement or exercises a right it has under an agreement; and
(d) - all bank fees, charges, expenses, interest and taxes which at that time are payable by the Customer to Highgate or in connection with our commercial relationship with the customer.
17.5 - You indemnify Highgate against, and you must therefore pay Highgate for, loss or costs it suffers or incurs if:
(a) - the Customer does not, is not obliged to, or is unable to, pay Highgate; or
(b) - you are not obliged to pay Highgate an amount under clause 17.4; or
(c) - Highgate is obliged, or it agrees, to pay an amount to a trustee in bankruptcy or liquidation in connection with a payment by you or the Customer.
17.6 - The indemnity in clause 17.5 is a continuing obligation, separate and independent from your other obligations under clause 17.4. It continues after those other obligations end.
17.7 - Highgate shall be at liberty without discharging you from liability under this guarantee and indemnity to grant time or other indulgence to the Customer in respect of goods or services or both supplied by Highgate to the Customer and to compound, compromise, release, abandon, waive, vary or renew any of its rights against the Customer.
17.8 - As long as this guarantee and indemnity remains in existence you may not, without Highgate’s consent reduce your liability under this guarantee and indemnity by claiming that you or the Customer or any other person has a right of set-off or counterclaim against Highgate.
17.9 - Where the Customer is a partnership no change in the constitution of the partnership shall affect, impair or discharge the liability of you under this guarantee and indemnity whether past, present or future.