(“Supplier’s Trading Terms”)
Italtex Trading Co Pty Ltd • ABN 86 001 377 108 • December 2021
IMPORTANT NOTICE TO THE APPLICANT FOR CREDIT (PART IIIA) Privacy Act 1998
Please read carefully
The Supplier may give information about you to a credit reporting agency, but only limited kinds of information allowed by the Privacy Act. This includes: Identity Details - this only includes your name, sex, date of birth, current known address, two immediately previous addresses, your current or last known employer, your driver’s licence number, the fact that you have applied for credit and the amount, the fact that the Supplier is a credit provider to you, payment overdue for at least 60 days which the Supplier has taken steps to recover, advice that payments are no longer overdue, cheques drawn by you which have been dishonoured more than once, the opinion of the Supplier that you have committed a serious credit infringement and when the credit provided to you has been discharged. By its execution hereof, the Applicant consents to the limited information set out herein being provided as specified.
The Supplier’s Trading Terms apply to the supply of all Goods by the Supplier to the Applicant unless specifically agreed in writing by the Supplier and the Applicant that the Supplier’s Trading Terms do not apply.
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PAYMENT OF ORDERS/ACCOUNTS
(a) All orders which are endorsed or described as “Pro Forma Orders” are firm, irrevocable and non-cancellable by the Applicant and must be paid for in full within 14 days from date of invoice. Where payment for a Pro Forma Order is not received within 14 days from date of invoice, the order may be cancelled by and at the sole discretion of the Supplier and in such event, the Applicant will be liable from date of notice of cancellation for a cancellation fee equivalent to 20% of the invoiced cost or $50.00, whichever is greater. All other orders made to the supplier must be paid for within 30 days of the date of the Supplier’s invoice (“the Payment Period”) and where payment in full is not received by the Supplier prior to the expiry of the Payment Period then the Applicant shall be liable to pay interest on the amount outstanding as at the expiry of the Payment Period at the rate of 1% per month until payment in full is received by the Supplier. The Supplier is hereby irrevocably authorised to allocate the payment of any monies received from time to time from the Applicant towards any outstanding amount incurred with the Supplier by the Applicant. All prices quoted shall be exclusive of Goods and Services Tax (“GST”) and GST will be payable on the sale price on payment of the invoice. -
PROPERTY IN AND DELIVERY OF GOODS
(a) Ownership passes to the Applicant on payment. The Supplier remains the owner of all Goods supplied until the Applicant has paid the full price for those Goods plus any associated charges. Payments by cheque do not count until the Supplier receives payment on the cheque. Upon any default by the Applicant in payment of any amount due to the Supplier, the Applicant irrevocably authorises the Supplier by its staff or agents to enter any premises or vehicle owned by the Applicant for the purposes of taking possession of the Goods if the Supplier has reasonable grounds to expect that the Supplier may find any part of the Goods there and the Applicant authorises the Supplier by its staff and agents to use all reasonable force to obtain such possession. That applies even if the Supplier holds some negotiable instrument or security for the unpaid amount. Until title in Goods has passed to the Applicant, the Applicant must:
(i) hold all such Goods as the Supplier’s bailee;
(ii) store the Goods so as to show clearly that they are the Supplier’s property and keep the Goods fully insured at the Applicant’s expense and hold the proceeds of any insurance claim in respect of the Goods (to the extent of the Applicants debts to the Supplier) in trust for the Supplier; and
(iii) in the event that any of the goods are sold by the Applicant (even if mixed with other Goods), act as the Supplier’s selling agent although only to the absolute minimum extent necessary to protect the Supplier’s ownership and the Applicant must hold the proceeds of sale on the Supplier’s behalf in a separate account that identifies the Supplier and pay those proceeds to the Supplier on request (and any agreement by the Supplier to extend credit to the Applicant or any other indulgence does not affect the Applicants liability to account to the Supplier).
(b) Passing of risk. Goods supplied are at the Applicant’s risk from the time that they are delivered to the Applicant’s premises and despite the fact that ownership may not have passed to the Applicant at that time. -
RETURNS AND CREDIT
(a) Any Goods purchased by the Applicant from the Supplier may only be returned to the Supplier where notification of the proposed return of the Goods is received within seven (7) days of the date of delivery of the Goods to the Applicant and the Supplier has agreed in writing to accept the return of the Goods and the Goods are returned in good condition at the expense of the Applicant. -
MISCELLANEOUS PROVISIONS
(a) It is expressly agreed that any action, suit, dispute or proceedings arising from or in connection with the sale of Goods pursuant to this Agreement or any matter between the parties hereto may be instituted, heard and determined in a court of competent jurisdiction in the State of New South Wales or of such other State of Australia nominated in writing by the Supplier and each party irrevocably submits to the jurisdiction of such court for the purpose of any such dispute, action, suit or proceedings.
(b) The Applicant hereby irrevocably authorises (i) the Supplier from time to time, in order to assess any application for credit, to obtain any information about the Applicant from any credit provider named in this application and also Gift and Homewares Australia, (ii) to obtain a credit report in respect of the Applicant from any credit agency and (iii) to provide any information contained on this credit application form and also details of the performance of the Applicant in compliance with the Supplier’s Trading Terms to other credit providers, credit agencies and to Gift and Homewares Australia.
(c) The Applicant further authorises the latter company to make such information available to other credit providers.
(d) Freight and transport costs from the Supplier’s nominated warehouse and in-transit insurance incurred in respect of the Goods are at the cost and liability of the Applicant and are not included in the invoiced price of the Goods.
(e) The word “Goods” shall be deemed to refer to any goods obtained by the Applicant from the Supplier from time to time pursuant to this Agreement.
(f) The Applicant shall be liable for and shall promptly pay the Supplier;
(i) any legal costs incurred by the Supplier on a solicitor/client basis
(ii) any court, bailiff costs and services fees incurred by the Supplier
(iii) any fees paid to a debt collector in respect of any action or court proceedings taken by or on behalf of the Supplier for the recovery of any monies due by the Applicant to the Supplier pursuant to this Agreement.
(g) Service of any notice or document pursuant to this Agreement may be effected in any manner prescribed by Section 170 Conveyancing Act 1919 as amended (New South Wales) or any section or provision in substitution therefore.
(h) The Supplier reserves the right to terminate this Credit Agreement at any time immediately upon service upon the Applicant of written notice of termination without providing any reason therefore. -
PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
(a) The Applicant agrees and acknowledges that the Supplier’s Trading Terms:
(i) constitute a security agreement for the purposes of the PPSA; and
(ii) create a security interest in all Goods that will be supplied to the Applicant in the future by the Supplier.
(b) The Applicant undertakes to:
(i) promptly sign any further documents and/or provide any further information which the Supplier may reasonably require to:
• register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register established by the PPSA;
• register any other document required to be registered by the PPSA; or
• correct a defect in the statement referred to in this clause 5.
(ii) indemnify and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(iii) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(iv) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier;
(v) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales; and
(vi) immediately advise the Supplier of any proposed change in the Applicant’s name and/or any other changes in the Applicant’s details.
(c) The Applicant agrees that sections 96, 115 & 125 of the PPSA do not apply to the security agreement created by these Supplier’s Trading Terms.
(d) The Applicant hereby waives the Applicant’s rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) & 132(4) of the PPSA.
(e) The Applicant waives the Applicant’s rights as a grantor and/or a debtor under sections 142 & 143 of the PPSA.
(f) Unless otherwise agreed to in writing by the Supplier, the Applicant waives the Applicant’s right